title-149•Title 149 W. Va. C.S.R.
Crime, Delinquency And Correction Crime, Delinquency And Correction
Series 01 Contested Case Hearings and Declaratory Rulings
W. Va. Code R. § 149-1-1 General
1.1. Scope. -- These rules establish the general procedures for conducting contested case hearings to facilitate the resolution of contested cases in a just, speedy and inexpensive manner.
1.2. Authority. -- W.Va. Code 29A-5-1(a).
1.3. Filing Date. -- October 29, 2014.
1.4. Effective Date. - November 5,2014.
December
W. Va. Code R. § 149-1-2 Application
These rules shall apply to every person, partnership, association, corporation or public corporation affected by any rules, regulations or statutes enforceable by the Governor's Committee on Crime, Delinquency and Correction.
W. Va. Code R. § 149-1-3 Definitions
3.1. "Agency" means the Governor's Committee on Crime, Delinquency and Correction created by section one, article nine, chapter fifteen of the Code.
3.2. "Director" means the Executive Director of the Governor's Committee on Crime, Delinquency and Correction.
3.3. "Law Enforcement Professional Standards Subcommittee" or "LEPS Subcommittee" means the subcommittee of the Governor's Committee on Crime, Delinquency and Correction created by section two,
article twenty-nine, chapter thirty of the Code.
3.4. "Hearing Examiner" means the person conducting a hearing by the authority of the executive Director of the Governor's Committee on Crime, Delinquency and Correction.
3.5. "Hearing" means any proceeding held under authority granted the Executive Director by law and conducted in accordance with the rules set forth in this regulation.
W. Va. Code R. § 149-1-4 Hearings
4.1. Demand for hearing; form required. -- Any party appealing a decision to the Agency or to the Director may demand a hearing to have determined any legal rights, duties, interests or privileges of specific parties . The party seeking a hearing shall specify in writing the grounds relied upon as a basis for the relief requested and must do so within fifteen (15) days from the date of action from which the party is appealing.
4.2. Hearing on written demand. -- When the Director is presented with a demand for a hearing as described in Subsection 4.1 of this section he shall conduct a hearing within forty-five (45) days of receipt by him of such written demand, unless postponed to a later date by mutual agreement. However, if the Director shall determine that the hearing demanded:
(a) Would involve an exercise of authority in excess of that available to him under law, or (b) Would serve no useful purpose, he shall, within twenty (20) days of the receipt of such demand enter an order refusing to grant the hearing as requested, incorporating therein his reason for such refusal.
Appeal may be taken from such order as provided in section four, article five, chapter twenty-nine-a of the West Virginia Code of 1931, as amended.
4.3. Notice of hearing. -- Upon the receipt of a demand for a hearing as described in Subsection 4.1 of this section, the Director shall, within twenty (20) days, provide the party making such demand with a notice of hearing providing the Director has not entered an order denying a hearing as provided in Subsection 4.2 of this
section. Such notice shall contain:
(a) The date, time and place of the hearing;
(b) A short plain statement of the matters asserted; and (c) A statement of intention to appoint a hearing examiner, if one is to be appointed, pursuant to
Section 8 herein; such notice shall be given at least ten (10) days in advance of the date of the hearing.
4.4. How hearings conducted. -- Hearings shall be conducted as follows:
(a) Any party shall have the right to be represented by an attorney at law, duly qualified to practice in the State of West Virginia;
(b) The agency may be represented by the Office of the Attorney General;
(c) The rules of evidence as applied in civil cases in the circuit courts of this State shall be followed;
(d) When necessary to ascertain facts not reasonably susceptible to proof under said rules of evidence, evidence not admissible thereunder shall be admitted, except where precluded by statute, if it is of a type commonly relied upon by reasonably prudent men in the conduct of their affairs;
(e) The agency shall be bound by the rules of privilege recognized by law;
(f) Documentary evidence may be received in the form of copies or excerpts or by incorporation of reference;
(g) Initially the appellant shall be given the opportunity to present evidence including testimony, papers, records and documents in support of his position;
(h) Every party shall have the right of cross-examination of witnesses who testify, and shall have the right to submit rebuttal evidence;
(i) The agency shall have the right to cross-examine witnesses providing rebuttal testimony; and (j) Following the presentation of all the evidence, every party, including the agency, shall have the right to offer argument, not to exceed a reasonable time limit as determined by the Director or the hearing examiner.
W. Va. Code R. § 149-1-5 Continuation and Adjournment
Hearings may be continued from one day to another or adjourned to a later date or a different place by announcement thereof at the hearing or by appropriate notice to all parties. A written motion for a continuance shall be filed at least five (5) days prior to the hearing date.
W. Va. Code R. § 149-1-6 Transcription of Reported Testimony and Evidence
6.1. What reported. -- All testimony, evidence, arguments and rulings on the admissibility of testimony and evidence shall be reported by stenographic notes and characters or by mechanical means.
6.2. Request from any party. -- Upon the request to the agency from any party to the hearing, all reported materials shall be transcribed and a copy thereof furnished to such party at his expense.
6.3. Transcription in the event a hearing examiner is appointed. -- In all cases where a hearing examiner is appointed, all reported material shall be transcribed and forwarded to the Director. Any parties requesting a copy of a transcript prepared pursuant to this subsection shall be furnished a copy at their expense.
6.4. Responsibility for transcript. -- The agency shall have the responsibility for making arrangements for the transcription of the reported testimony and evidence. In the event transcription is required pursuant to this
section it shall be accomplished with all dispatch.
6.5. Correction of error in transcript. -- Upon the motion of the agency or any party assigning error or omission in any part of any transcript, the agency, through the Director or his duly appointed hearing examiner, shall settle all differences arising as to whether such transcript truly discloses what occurred at the hearing and shall direct that the transcript be corrected and revised in the respects designated, so as to make it conform to the whole truth.
W. Va. Code R. § 149-1-7 Submission of Proposed Findings of Fact and Conclusions of Law; Time for Submission
Any party, including the agency, may submit to the Director or his duly appointed hearing examiner proposed findings of fact and conclusions of law within thirty (30) days of the conclusion of a hearing or, in the event the proceedings of a hearing are transcribed, within twenty (20) days from the date the final transcript is available.
W. Va. Code R. § 149-1-8 Appointment of Hearing Examiner; Function of Hearing Examiner
The Director may, in his discretion, appoint a hearing examiner who shall be empowered to request the presence of witnesses and documents, administer oaths and affirmations, to examine witnesses under oath, to
rule on evidentiary questions, to hold conferences for the settlement or simplification of issues by consent of the parties and to otherwise conduct hearings as provided in Section 4 herein.
W. Va. Code R. § 149-1-9 Conferences; Informal Disposition of Cases
At any time prior to the hearing or thereafter, the Director, or his duly appointed hearing examiner may hold conferences:
(a) To dispose of procedural requests or similar matters;
(b) To simplify or settle issues by consent of the parties; or (c) To provide for the informal disposition of cases by stipulation, agreed settlement or consent order.
The Director, or his duly appointed hearing examiner, may cause such conferences to be held on his own motion or by the request of a party.
W. Va. Code R. § 149-1-10 Depositions Permitted
Evidentiary depositions may be taken and read into evidence as in civil actions in the circuit courts of this State.
W. Va. Code R. § 149-1-11 Orders; Content
Every final order entered by the Director, following a hearing conducted pursuant to these rules, shall be made pursuant to the provisions of section three, article five, chapter twenty-nine-a of the West Virginia Code of 1931, as amended. Such orders shall be entered within forty-five (45) days following the submission of all documents and materials necessary for the proper disposition of the case, including transcripts and proposed finding of fact and conclusions of law.
W. Va. Code R. § 149-1-12 Appeal
An appeal from any final order or ruling entered in accordance with these regulations shall be filed within sixty (60) days and in accordance with the provisions of section four, article five, chapter twenty-nine-a of the West Virginia Code of 1931, as amended.
W. Va. Code R. § 149-1-13 Severability
If any provision of these rules or the application thereof to any person or circumstances shall be held invalid, such invalidity thereof shall not affect the provision or application of these regulations which can be given effect without the invalid provision or application and to this end the provisions of these regulations are declared to be severable.
Series 02 Law Enforcement Training and Certification Standards
W. Va. Code R. § 149-2-1 General
1.1. Scope. -- This legislative rule establishes standards for basic training academies with medical admission guidelines and the job description of an entry-level officer. This rule also outlines annual in-service and biennial in-service training, continued certification, re-certification, and de-certification standards for law enforcement officers.
1.2. Authority. -- W. Va. Code §30-29-3.
1.3. Filing Date. -- May 13, 2026.
1.4. Effective Date. – July 1, 2026.
1.5. Sunset Provision. -- This rule shall terminate and have no further force or effect on August 1, 2031.
W. Va. Code R. § 149-2-2 Definitions
2.1. “Approved law enforcement training academy” means any training facility that is approved and authorized by the Law Enforcement Professional Standards Subcommittee, to conduct law enforcement training.
2.2. “Chief executive” means the superintendent of the West Virginia State Police; the chief Natural Resources Police officer of the West Virginia Division of Natural Resources; the sheriff of any West Virginia County; any administrative deputy appointed by the chief Natural Resources Police officer of the West Virginia Division of Natural Resources; the chief of any West Virginia municipal law-enforcement agency, or the chief of any campus police agency at state institutions of higher education.
2.3. “Conviction” means an adjudication of guilt or a plea in a criminal case in this state or any other municipal, federal, tribal, military or state jurisdiction. “Conviction,” when used in this rule applies to convictions entered both before and after the effective date of this section.
2.4. “County” means any one of the 55 major political subdivisions of the state.
2.5. “Director” or “Director of Training” means the person appointed by the head of agency operating an entry level training academy to be the person in charge of the operation of that academy.
2.6. “Division” or “JCS” means the Division of Administrative Services (DAS) Justice and Community Services (JCS) Section of the Department of Homeland Security.
2.7. “Exempt rank” means any noncommissioned or commissioned rank of sergeant or above as regarding the requirements set forth in this rule.
2.8. “Firearms Officer” means any individual who has successfully completed a Subcommittee approved Law Enforcement Firearms Handgun Instructor course but is not certified as a Firearms Instructor as defined in subsection 5.2. of this rule.
2.9. “Good standing” means any law enforcement officer that has not been denied certification or had his or her certification revoked or suspended by the Subcommittee pursuant to the provisions of this rule; except that for the purposes of re-certification pursuant to section 15 of this rule only, an officer is considered to be in good standing even if his or her certification was not renewed for failing to attend mandated in-service training because of his or her position as a law enforcement official.
2.10. “Governor’s Committee on Crime, Delinquency and Correction” or “Governor’s Committee” or “Committee” means the Governor’s Committee on Crime, Delinquency and Correction established as a state planning agency pursuant to W. Va. Code §15-9-1 with duties as set forth in W. Va. Code §30-29-3 and this rule.
2.11. “Inactive” as it relates to certification means the status of a previously certified officer upon separation from employment and prior to reactivation by the subcommittee thereby placing the individual in a non-law enforcement status as provided for in subsection 2.13. of this section.
2.12. “Law enforcement officer” means any duly authorized member of a law enforcement agency who is authorized to maintain public peace and order, prevent and detect crime, make arrests and enforce the laws of the state or any county or municipality of the state, other than parking ordinances, including persons employed as campus police officers at state institutions of higher education, those persons employed by the Public Service Commission as motor carrier inspectors and weight enforcement officers, those persons employed as law enforcement officers at airport authorities and those persons employed as resort area rangers at resort area districts. Provided that, the term “law-enforcement officer” does not apply to the chief executive of any West Virginia law-enforcement agency or any watchman or special natural resources police officer.
2.13. “Law enforcement official” means the duly appointed chief administrator of a designated law enforcement agency or a duly authorized designee.
2.14. “Law Enforcement Professional Standards Information System” or “LEPSIS” means the electronic database used to track law enforcement officer employment status, training, firearms qualification, and certification.
2.15. “Level 1 Instructor” means those individuals that have met the criteria established in this rule to conduct entry level and in-service training programs.
2.16. “Level 2 Instructor” means those individuals that have met the criteria established in this rule to conduct instructor level training.
2.17. “Municipality” means any incorporated town, village, or city whose boundaries lie within the geographic boundaries of the state.
2.18. “Non-law enforcement status” means an officer may not wear the uniform of that agency, may not be armed, and will not perform the duties of a law enforcement officer as defined in W. Va. Code §30-29-1 and subsection 8.3. of this rule. An officer in non-law enforcement status shall not present himself or herself in any manner that a reasonable person would perceive him or her to be a law enforcement officer, except as provided for in state code. This rule does not require an employing agency to create a non-enforcement position for applicants who are unable to complete the physical ability test for admission to an entry-level training program.
2.19. “Reactivation” as it relates to certification means having an officer’s status reinstated from inactive status.
2.20. “Scholastic failure” means the failure of required graded academic examinations or evaluated skill courses.
2.21. “Subcommittee” or “law enforcement professional standards subcommittee” means the subcommittee of the Governor’s Committee on Crime, Delinquency and Correction established pursuant to W. Va. Code §30-29-2 with duties as set forth in W. Va. Code §30-29-3 and this rule.
2.22. “Trainee” means any individual attending an entry level related law enforcement certification training program.
2.23. “West Virginia law enforcement agency” means any duly authorized state, county or municipal organization including any campus police agency at state institutions of higher education, airport police authorities, resort area districts or park police authorities employing one or more persons whose responsibility is the enforcement of law of the state or any county or municipality of this state.
W. Va. Code R. § 149-2-3 Academy Facility Standards
3.1. Location. -- Basic training may be provided at a single central location or at a central location and 1or more regional locations. The standards outlined in this rule apply to any facility where basic training will be conducted and shall insure that the training shall be carried out in an adequate and proper setting.
3.2. Facility. -- The facility may be a single building, a room, or rooms in a building or more than one building, which provides adequate space to meet the needs of people undergoing training over a period of several weeks.
3.3. Need -- The Subcommittee is responsible for determining the need as to the number and type of entry level certification training academies/programs and their location.
3.3.1. Any existing approved law enforcement training academy that terminates entry-level law enforcement training for a period of 24 months or longer shall make application to the subcommittee for the establishment of a new entry-level law enforcement training academy.
3.4. Classrooms.
3.4.1. The classroom shall be large enough to comfortably accommodate the largest anticipated attendance. Minimum registration for any entry level training class funded by the Subcommittee is 25 officers.
3.4.2. Artificial or day lighting shall provide good visibility at all times and permit the use of visual training materials.
3.4.3. Adequate ventilation and seasonal temperature control shall be provided. The system shall provide for individual classroom control if more than one classroom is used.
3.4.4. Acoustics shall be adequate to enable the speaker to be heard from any place in the classroom being used. A public-address system shall be provided if needed.
3.5. Classroom Amenities.
3.5.1. All desks shall have smooth tops and shall be of sufficient size to accommodate adult trainees.
3.5.2. Display surfaces shall be positioned to permit unobstructed viewing from the rearmost area of the classroom and shall be of an appropriate size to allow material displayed and/or writing to be viewed by all participants.
3.5.3. Each classroom, if necessary, shall be equipped with a lectern to accommodate lecture materials.
3.5.4. All appropriate audio and video equipment and training aids shall be available and operable at the beginning of each class.
3.6. Up-to-date court rulings as well as current copies of law enforcement related periodicals shall be made readily available when necessary.
3.7. Firearm Range. -- The firearm range shall meet or exceed all safety standards promulgated by the National Rifle Association.
3.7.1. The range shall be appropriate for the weapons training or certification being conducted and shall be located within reasonable driving distance from the academy site.
3.7.2. It shall permit sole occupancy by law enforcement agencies when in use by them for firearms training or qualification.
3.7.3. Curriculum firearms training time does not include travel time if the range is more than 15 minutes from the academy site.
3.8. Physical Training Room. -- Each facility shall include 1 room of sufficient size to accommodate trainees during physical fitness and defensive training.
3.9. Common Study Area -- Each facility shall include 1 room of sufficient size to accommodate study time.
3.10. Restrooms. -- Separate restroom facilities of sufficient size and number to accommodate the needs of both sexes shall be provided in close proximity to the classrooms.
3.11. Parking. -- Adequate and free parking space shall be provided. The parking area shall be within reasonable walking distance of all classrooms.
3.12. Supplies. -- Each trainee shall be furnished with the following supplies as needed:
3.12.1. Ammunition for firearms training;
3.12.2. An information Storage Device sufficient to accommodate all notes and handout materials;
3.12.3. Legal pads in a sufficient number to permit taking of detailed notes throughout the duration of the training program;
3.12.4. A current copy of all relevant West Virginia Code sections;
3.12.5. Writing instruments in a sufficient number to permit taking of detailed notes throughout the duration of the training program;
3.12.6. A copy of the course schedule;
3.12.7. A copy of the rules governing operation of the training facility; and,
3.12.8. Handout materials required by the instructors.
3.13. Food Services. -- Law enforcement training academies shall provide food service:
3.13.1. If in-house food service is available and provided, all food preparation and dining facilities shall be established and maintained in accordance with applicable state and local health department rules.
3.13.2. If commercial food services are used, these services should be located within a distance that would allow the trainee to leave, eat, and return to class within 60 minutes.
3.14. Medical Facility. -- A medical facility within a reasonably close proximity to training site shall be identified.
W. Va. Code R. § 149-2-4 Academy Staffing
4.1. Director of Training.
4.1.1. Appointment. -- The appointment of a Director of Training shall be made by the head of the law enforcement agency if the academy is under the control of a police agency. If under an academic institution the head of the department operating the academy may make the appointment under which the training will be provided.
4.1.2. Approval. -- The Director of an academy other than the West Virginia State Police Academy shall be approved by the Subcommittee based on a composite assessment of the candidate’s education, training, administrative experience, and law enforcement experience.
4.1.3. Responsibilities. -- The Director has the overall responsibility for the operation of the training program and shall:
4.1.3.a. Ensure that all personnel comply with policies, procedures and regulations governing the training program;
4.1.3.b. Select qualified instructors;
4.1.3.c. Recommend and request the reassignment of training personnel;
4.1.3.d. Maintain the professional skills and abilities of personnel assigned to the training program;
4.1.3.e. Assign instructors only to areas in which they are qualified to teach and monitoring their quality of instruction through regular supervision;
4.1.3.f. Require all applicants to provide a medical examination that shows they meet the requirements for admission to a basic entry-level training program and successfully complete the physical fitness test battery for entry into an entry-level training program;
4.1.3.g. Exercise administrative and supervisory control over personnel;
4.1.3.h. Dismiss trainees;
4.1.3.i. Excuse absences of trainees; and,
4.1.3.j. Delegate authority.
4.1.4. Accountability. -- The Director is accountable to the appointing authority for the operation of the training academy or program in compliance with the policies and regulations of the agency or department conducting the academy. The Director shall keep the Subcommittee informed regarding the training program. At the request of the Subcommittee or as needed, the Director shall appear before the Subcommittee, to discuss the training program.
4.2. Law Enforcement and Firearms Instructors.
4.2.1. Instructors are accountable initially to a first-level supervisor if one exists. If there are no first-level supervisors, instructors are accountable to the Director.
4.3. The provisions of this section are applicable to instructors in a basic training academy, annual in-service, or biennial in-service training programs.
W. Va. Code R. § 149-2-5 Instructor Certification
5.1. Law Enforcement Level 1 Instructor Certification.
5.1.1. Standards. -- All law enforcement level 1 instructors’ certifications are valid for 4years if the level 1 instructor has:
5.1.1.a. Current certification as a law enforcement officer in the State of West Virginia if applicable;
5.1.1.b. A high school diploma or its equivalent;
5.1.1.c. 3 years of experience as a police officer including a minimum of 1 year, or for non-law enforcement officers a minimum of 2 years of direct work experience in the occupation or area in which certification is desired;
5.1.1.d. Completed a minimum of 16 hours of verified training in each academic subject area within the 2 years preceding the application for which certification is desired; provided that certain training may require additional hours as required by the Subcommittee.
5.1.1.e. 40 hours of instructor development training approved by the Subcommittee. The course content shall include topic areas such as communication, psychology of learning, techniques of instruction, use of instructional aids, preparation and use of lesson plans, and preparation and administration of tests; and,
5.1.1.f. Written recommendation if required from the applicant's agency head, or if a civilian, from a law enforcement agency head, training director or other recognized individual who knows the applicant’s teaching abilities.
5.1.2. Maintenance Requirements. -- In order to keep their certifications active, certified law enforcement level 1 instructors shall:
5.1.2.a. Instruct at least 8 hours in a basic training program or a Subcommittee certified in-service program every 12 months from the date of their original certifications; or,
5.1.2.b. Attend, at a minimum, 8 hours on teaching updates or additional training in subject areas in which they are certified to instruct, every 12 months of the original level 1 instructor certification.
5.1.3. Inactive Instructor Status. -- Level 1 instructors placed on inactive status by the Subcommittee shall, within 24 months of such placement, attend an 8 hour approved program in any inactive subject area; or teach 8 hours in a Subcommittee approved program in any inactive subject area under the direct supervision of an active, certified instructor. The Subcommittee shall revoke the level 1 instructor certification for failure to obtain or perform one of the above referenced acts in the time periods described.
5.2. Firearms Level 1 Instructor Certification.
5.2.1. Standards. -- Firearms level 1 instructors, in addition to qualifications required for law enforcement instructors set forth in subsection 5.1. of this rule, shall:
5.2.1.a. Have experience in the use, care, and maintenance of a firearm; and,
5.2.1.b. Complete a law enforcement handgun firearms instructor school, of not less than 40 hours, approved by the Subcommittee.
5.2.2. Maintenance of Certification. -- In order to keep their certifications active, level 1 firearms instructors shall:
5.2.2.a. Instruct at least a 2 hour block of firearms instruction in a department or committee recognized firearms certification program, either in a firearms associated classroom presentation or actually on the firearms range, every 24 months from the date of their original level 1 instructor certifications; or,
5.2.2.b. Attend, at a minimum, a 4 hour program on teaching updates or additional training in subject areas in which they are certified to instruct within 24 months of original level 1 instructor certification date.
5.2.3. Inactive Instructor Status. -- Level 1 firearms instructors placed on inactive status by the Subcommittee shall within 24 months of such placement, attend an 8 hour approved firearms training program or teach in a department recognized firearms program under the direct supervision of an active firearms instructor. The Subcommittee shall revoke the level 1 instructor certification for failure to obtain or perform one of the above referenced acts in the time periods described.
5.3. Law Enforcement Level 2 Instructor Certification.
5.3.1. Standards. -- All law enforcement level 2 instructors’ certifications are valid for 4 years if the level 2 instructor has:
5.3.1.a. Current certification as a law enforcement officer in the State of West Virginia;
5.3.1.b. A high school diploma or its equivalent;
5.3.1.c. 7 years of experience as a certified police officer;
5.3.1.d. 4 years of experience as a level 1 instructor within the previous 5 years;
5.3.1.e. Successfully completed an approved instructor/trainer course in the subject matter requested within the previous 5 years.
5.3.2. Maintenance Requirements. -- In order to keep their certifications active, certified law enforcement level 2 instructors shall instruct at least 8 hours in a Subcommittee certified instructor-level program every 24 months from the date of their original certifications.
5.3.3. Inactive Instructor Status. -- Level 2 instructors placed on inactive status by the Subcommittee shall, within 24 months of such placement, teach 8 hours in a Subcommittee approved instructor program in any inactive subject area under the direct supervision of an active, certified level 2 instructor.
5.4. Waiver of Standards for Certain Individuals.
5.4.1. Licensed members of the West Virginia State Bar, the medical profession and other similar professions; high school, community or junior college, college and university faculty members; certified emergency medical care or advanced first aid instructors; and employees of United States governmental agencies or of state or local agencies which have police regulatory power and whose training assignments are of such short duration as to make certification impractical, or are approved law enforcement instructors by other state or federal level law enforcement training and standards programs may apply to the Subcommittee for an exemption of the level 1 instructor certification process.
5.4.2. The Subcommittee may waive any of the requirements of this section if it finds a person, although not meeting all of the eligibility requirements, is otherwise qualified to be an instructor.
5.5. Validity of Certification. -- Law enforcement instructor certification is valid for a period of 48 months from the date of approval in each area of expertise or firearm related area of expertise for instructors who have not had a revocation related action taken against their law enforcement instructor certification as set forth in subsection 5.6. of this rule or their certification as a law enforcement officer as set forth in section 16 of this rule has not been suspended or revoked.
5.6. Revocation or Suspension. -- The Subcommittee may revoke or suspend an instructor's certification:
5.6.1. When an instructor is found to be no longer qualified;
5.6.2. When an instructor is separated from employment, as defined in subdivisions 17.2.3., 17.2.4., or 17.2.5. of this rule;
5.6.3. When a recommendation to revoke or suspend certification is made by the director of a training program approved by the Subcommittee, or by the instructor's employer for failure to provide adequate or proper instruction; or,
5.6.4. For falsified or omitted information on any necessary paperwork required by the Subcommittee.
5.7. The provisions of this section are applicable to level 1 and level 2 instructors in all Subcommittee approved training.
5.8. In the instance of the revocation or suspension of an instructor’s certification the Subcommittee shall set the standards and requirements to be completed by the instructor for his or her certification to be made active once again.
W. Va. Code R. § 149-2-6 Training Academy Policies
6.1. Attendance. -- Trainees shall attend all classes and class functions, including all items listed in the course curriculum, unless excused by the Director. Absences may be excused for illness or injury of the trainee or for other causes approved by the Director. An unexcused absence constitutes grounds for dismissal. Work missed while absent shall be made up.
6.2. Scholastic Grades. -- The minimum passing grade on an examination is 75%. Trainees failing to obtain 75% on an examination may be allowed to retake the examination within 5 days. In the event the trainee passes the make-up examination, he or she shall be retained in the training program. The scores of the original examination and the make-up examination will be recorded on the trainee’s class record. Provided that trainees may retake a maximum of 2 separate failed examinations during the course of the program. Any trainee failing to pass after the second examination shall be dismissed as a scholastic failure.
6.3. Skills Training -- Trainees will be given 3 attempts to successfully complete all skills examinations pursuant to criteria approved by the Director of Training. Any trainee failing to pass any skill examination after three attempts shall be dismissed as a scholastic failure.
6.4. Reentry. -- Reentry to a subsequent basic training for trainees who have withdrawn from a program because of an injury, extended illness, hardship, or circumstances beyond their control is at the discretion of the Director. If denied reentry by the Director the trainee, or his or her agency head, may appeal this denial to the Subcommittee.
6.5. Dismissal. -- The Director may dismiss a trainee for disobedience of staff orders, a flagrant or repeated violation of academy regulations, or misconduct.
6.5.1. The Director shall provide written notice to the head of the agency employing the dismissed trainee. The Director shall also provide a copy of the written notice to the affected trainee and to the Subcommittee.
6.5.2. Any trainee dismissed for reasons other than scholastic failure may appeal the dismissal to the Subcommittee. An appeal of the decision made by the Subcommittee will be as set forth in section of this rule.
6.5.3. Any trainee resigning for voluntary reasons, other than hardship as set forth in subsection 6.4. of this rule, may not appeal his or her resignation to the subcommittee.
6.6. Salary. -- The trainee's salary for a 40 hour work week while undergoing training and his or her travel costs to and from the training site are the responsibility of the employing agency. The cost of training uniforms, fatigues and other personal equipment required for training shall be paid for by the employing agency. The employing agency may be required by the Subcommittee to provide proof of such salary or items payment.
6.7. Costs.
6.7.1. The cost for food, lodging and training materials for trainees attending a residential entry-level training academy may be paid by the Subcommittee.
6.7.2. The Subcommittee, upon submission of a grant application, shall review other costs relating to the operation and presentation of entry-level or in-service training programs. Costs approved by such review may be paid by the Subcommittee.
6.7.3. Awards for the payment of costs approved by the Subcommittee shall be from the special revenue account established by W. Va. Code §30-29-4.
W. Va. Code R. § 149-2-7 Academy Training Curriculum
7.1. The objective of the curriculum is to provide all law enforcement officers with a minimum of 850 hours of entry level training for certification.
7.2. The employing agency shall provide training in those areas not included in the core curriculum. Local ordinances and department policies and procedures are examples of training that shall be provided by each employing agency.
7.3. The core curriculum shall be amended, as necessary, to meet the needs of the largest possible number of law enforcement agencies. Changes in the core curriculum require approval of the Subcommittee. Recommendations for change shall be made in writing to the Subcommittee.
W. Va. Code R. § 149-2-8 Academy Entry Standards
8.1. Entry standards for participation in an entry level certification training academy or program include, but are not limited to, an applicant’s demonstration of his or her ability to perform, or be trained to perform, all of the essential tasks and functions contained in the job description and the ability to meet the required medical and physical ability standards as set forth in this rule.
8.1.1. This rule will insure that persons appointed to positions as police officers, in agencies subject to this rule, are medically fit to undergo the training requirements for the position, and to perform their essential tasks, at a minimal risk to themselves, their fellow officers, and the public.
8.1.2. All requests for reasonable accommodation concerning participation in an entry level certification training academy or program by a trainee or his or her employing agency head shall be made prior to its start and shall be approved by the Subcommittee. Each reasonable accommodation request may be reviewed by a panel of at least 4 people appointed by the Chairman of the Subcommittee before a decision is made on the request by the Subcommittee. The panel shall use the job description and medical standards for entry into a basic entry-level training program as a basis of their decision on the request for reasonable accommodation.
8.2. Academy Application Requirements.
8.2.1. All newly hired and uncertified, by the Subcommittee, law enforcement officers shall apply for admission to an entry-level training program by submission of a completed and medically acceptable academy application packet within 90 calendar days of their date of employment, whether the employment type is full or part time. Their employer shall provide written or electronically communicated notice to the Academy or the Subcommittee of this officer’s employment, which shall include personal identification information, the date of employment and information as to whether the individual has worked as a law enforcement officer before as close as possible to the decision to employ the individual.
8.2.1.a. A completed application consists of an application sheet; a true and accurate medical history statement; a complete medical examination report; and federal and state fingerprint cards or other paperwork approved by the Subcommittee on recommendation of the Director.
8.2.1.b. For the purposes of this section uncertified refers to individuals not certified as a West Virginia law enforcement officer by the Subcommittee.
8.2.2. Any officer who fails to file or have filed on his or her behalf a completed application within the 90 calendar day period shall be immediately terminated as a law enforcement officer. Any officer terminated may apply to the Subcommittee as a private citizen for training and certification at his or her own expenses as provided for in W. Va. Code §30-29-5 or this rule.
8.2.3. An applicant may file or have filed on his or her behalf a request for an extension of the 90 calendar day period. This request shall be filed prior to the end of the 90-calendar day period. The request is to be filed with the Subcommittee.
8.2.4. After the student initially submits their application to an academy, that is the academy that the student has to attend and cannot be transferred to another academy.
8.3. Entry Level Law Enforcement Officer Job Description: Under regular supervision, an entry-level officer performs basic police services in accordance with the mission, goals, and objectives of the employing agency and in compliance with governing federal, state, and local laws. At the completion of an entry level training program, an officer should be able to perform the essential functions established by the Subcommittee of a law enforcement officer. These functions may be set based on job task analysis evaluations, law enforcement officer performance research and the experience of the Subcommittee members and law enforcement professionals and administrators. The functions so established by the Subcommittee will be available for review from the Subcommittee and will be posted on the website of the Division on the page supporting the Subcommittee.
8.4. Medical Standards. -- All applicants for entry into an entry-level training program shall submit to a medical examination by a licensed physician or a licensed medical employment testing company chosen by and at the expense of the employing agency. The applicants shall complete a comprehensive medical history questionnaire, as well as submit to a medical examination which shall include the following minimum requirements: A medical history; a medical examination; laboratory tests; blood chemistry; Complete Blood Count (CBC); urinalysis; Tuberculosis; Electrocardiogram (ECG); and drug screening. The criteria as to type and method of evaluation of any required laboratory tests shall be established by the Subcommittee.
8.4.1. The medical examination shall consist of criteria aimed at identifying conditions that may potentially exclude an applicant from entry into a basic entry-level training program.
8.4.2. Applicants employed by a law enforcement agency that are required to meet medical requirements for firefighters (National Fire Protection Standards 1582 or its most current equivalent) as a condition of employment shall use that medical standard for entry into an entry-level training program (W.Va. Code §8-22-16).
8.4.3. The Medical History Statement and Medical Examination Report are valid for a one-year period, to be measured from the date of the examining physician’s or testing company director’s signature on the State of Condition page of the Medical Examination Report.
8.4.4. The examining physician or director of the medical employment testing center shall note if the applicant has any of the medical and physical conditions established by the Subcommittee which may interfere with the applicant’s ability to perform the essential functions established by the Subcommittee for an entry level law enforcement officer. The conditions established by the Subcommittee shall be available for review and shall be posted on the website of the Division. These conditions may be cause to exclude an applicant from consideration for acceptance except where specifically noted in the listed conditions.
8.4.5. Any medical or physcial condition established by the Subcommittee that may be cause to exclude an applicant form which requires further evaluation to determine the condition’s impact upon the applicant’s ability to perform the essential functions that an entry level law enforcement officer should be able to perform, shall be conducted at the applicant’s expense.
8.4.6. For the purposes of this section the term licensed means a physician or medical employment testing company that is in good and active standing with the medical licensing board of the state in which he or she or it is operating.
8.5. Physical Ability Standards.
8.5.1. All applicants for basic entry-level training are required to perform at the 40th percentile (Cooper Institute of Aerobics Research, Single Standard Norm) of ability as a pass or fail screening for admission into an entry-level training program.
8.5.2. The battery of screening elements, based on the significant work of the Cooper Institute for Aerobics Research, indicates an applicant’s ability to satisfactorily perform the essential job tasks of the entry-level law enforcement officer as listed in this rule. Standards for successful completion of ability screening tests, where otherwise not set by this section, may be established by the Subcommittee. The standards shall be posted to the Division website supporting the Subcommittee.
8.5.3. The 3 elements of the test battery are designed to confirm the physical ability to perform entry-level training and perform the essential functions of an entry-level law enforcement officer as approved by the Subcommittee. They are not job task simulations, but rather are construct validation of the applicant’s capacity to learn and perform essential physical tasks. Applicants shall be given two attempts to obtain the 40th percentile on each test element. The retest (e.g. second attempt to obtain the 40th percentile on an element of the test battery successfully) shall be on different date, as set by the Director, to gain entry into the next available entry level training program. Each test element shall be passed before proceeding to the next test element. Applicants unable to attain the 40th percentile upon retest shall be placed in a non-law enforcement position until such time as the applicant can obtain the 40th percentiles on all elements of the test battery and enter an entry-level training program. An applicant who is waiting to retest shall insure that his or her medical examination, and its associated tests, was completed within one year immediately preceding the date of the retest.
8.5.4. After 2 failures of the physical ability test, applicants shall have a 2 year waiting period before being eligible to enter into employment as a law enforcement officer.
8.5.5. The physical ability tests shall consist of:
8.5.5.a. Sit-ups (Muscular Endurance) - The score is the number of bent-leg sit-ups performed in 1 minute.
8.5.5.b. Push-ups (Absolute Strength) - The score is the number of conventional push-ups performed in 1 minute. A conventional push-up is defined as an exercise performed in the prone position by raising and lowering the body with the straightening and bending of the arms, while keeping the back straight and supporting the body on the hands and toes. The push-ups will be scored by 1 of the following 2 standards:
8.5.5.b.1. The counter will place his or her fist on the floor with the nails of their fingers to the floor. If done this way, the applicant’s chest must touch the fist for the push-up to be complete; or
8.5.5.b.2. Using a block of wood, dimensions of which shall be set by the Subcommittee, on which the counter may place his or her finger. If done this way, the applicant’s chest must touch the counter’s finger for the push-up to be complete.
8.5.5.c. 1.5 mile run (Cardiovascular Capacity) - The score is the elapsed time in minutes and seconds required by the applicant to complete the run.
8.5.6. Applicants who successfully completed all 3 elements of the physical ability test may use the passage of this test for entry into the entry-level training program.
8.5.7. Applicants who successfully completed all 3 elements of the physical ability test, whose agencies withhold them from entry into the first scheduled entry-level training program, shall retake and successfully complete all 3 elements of the physical ability test for entry into the next available basic entry-level training program.
8.5.8. Failure of any applicant to participate in an assigned physical ability testing shall be recorded as failure of the physical ability test. Applicants who, as the result of extenuating circumstances, are unable to attend and participate in a scheduled physical ability testing shall advise the Director in writing prior to the test date requesting rescheduling and explaining in detail the extenuating circumstances.
W. Va. Code R. § 149-2-9 Annual In-Service Training Facilities
9.1. Standards for annual in-service and biennial supervisory level training facilities are similar to those for entry-level training but are less rigid because of the short duration and narrower scope of the training programs. All in-service programs approved by the Subcommittee shall be conducted in adequate and proper facilities.
9.2. Classrooms.
9.2.1. The classroom used shall be large enough to comfortably accommodate the maximum number of trainees attending and shall be approved by the Subcommittee in advance of the starting date.
9.2.2. Artificial or day lighting shall provide good visibility under normal environmental conditions and shall permit the use of audio-visual training aids.
9.2.3. Adequate ventilation and seasonal temperature control shall be provided in the classroom.
9.2.4. Acoustics shall be adequate to enable the speaker to be heard from any place in the used area of the classroom. A public address system shall be provided if needed.
9.3. Classroom Amenities
9.3.1. Seating shall be of comfortable design and of sufficient size to accommodate adults.
9.3.2. Desks or tables shall have smooth tops and shall be of a size as to comfortably permit note taking by adult trainees.
9.3.3. Display surfaces shall be sufficient in size and positioned to permit adequate viewing by trainees seated in the rearmost used area of the classroom.
9.3.4. The classroom shall be equipped with a lectern of some type if necessary and sufficiently large enough to accommodate lecture materials.
9.3.5. Audio visual training aids required to conduct any part of the training program shall be on hand and operable when needed.
9.4. Restrooms. -- Restrooms shall be available.
9.5. Parking. -- Adequate parking space shall be provided and be located within reasonable walking distance of the training location.
W. Va. Code R. § 149-2-10 Annual In-Service Training and Firearms Qualifications
10.1. Annual in-service training required by the Subcommittee for continued certification shall consist of a minimum of 16 hours, exclusive of firearms qualification.
10.1.1. A maximum of 50% of this training may be completed as part of on-line or web-based training program.
10.1.2. Certified law enforcement instructors may receive up to a maximum of 8 hours of annual in-service training credit for teaching in a Subcommittee approved annual in-service training course.
10.2. Each law enforcement agency shall require, at a minimum, semi-annual firearms qualifications of all active officers, with the officer’s primary duty weapon, which unless previously requested and approved by the Subcommittee shall be considered the officer’s handgun, one of which will be a low light firing for qualification. All qualifications shall be separated by a minimum period of 3 months.
10.2.1. Each duty weapon qualification shall:
10.2.1.a. Be with the individual’s unmodified primary service duty weapon;
10.2.1.b. Be on a course of fire requiring a minimum of 32 rounds;
10.2.1.c. Range from a distance of no less than 3 yards to a minimum of 15 yards with the number of rounds to be fired at each distance and whether dominant hand or non-dominant hand assisted or unassisted to be set and published by the Subcommittee;
10.2.1.d. Be on a target with a scoring area set and published by the Subcommittee on the website of the Division on the page supporting the Subcommittee; and
10.2.1.e. Be conducted by a subcommittee approved firearms officer or firearms instructor.
10.2.2. The required course of fire in paragraph 10.2.1.c. of this rule established by the Subcommittee shall be available for review from the Subcommittee and shall be posted on the website of the Division on the page supporting the Subcommittee.
10.2.3. The minimum passing score for qualification shall be set and published by the Subcommittee on the website of the Division on the page supporting the Subcommittee.
10.2.3.a. The employing agency shall submit the qualification scores for each officer to the Subcommittee. Any law enforcement agency failing to report firearms qualification shall be listed in the annual report of the Subcommittee addressing officer training, qualification and certification actions completed during a training year (fiscal year cycle) filed with the Governor and the President of the Senate and the Speaker of the House of Delegates of the West Virginia Legislature.
10.2.4. The guidelines listed in subdivisions 10.2.1. and 10.2.3. shall be considered minimum standards and do not prohibit any law enforcement agency from establishing more stringent qualification standards as an agency policy.
10.3. To qualify for funding or credit for continued certification, all in-service curricula shall be approved in advance by the Subcommittee.
10.3.1. The Subcommittee reserves the right to review or approve itself or through its designee, on a case-by-case basis, any curricula that was not approved in advance, as required by subsection 10.3. of this rule.
10.4. The training is preferred to be given in 2 hour minimums; Provided that, exceptions may be granted by the Subcommittee or its designee.
10.5. Subject matter shall include the majority of subjects included in the entry level training curriculum or other subjects of a specialized nature determined to be relevant for the use by an officer in completing his or her assigned duties as a law enforcement officer in this state. Successful completion, as defined by the sponsoring or presenting training organization, is required for the training to be credited against the training requirement set forth in subsections 10.1. and 11.2. of this rule.
10.6. Requests for training funds or in-service training credit approval shall consist of the following:
10.6.1. a list of the program objectives;
10.6.2. the names, titles and agencies of the instructors;
10.6.3. the date and time at which the training is scheduled;
10.6.4. the facility at which the training will be conducted; and,
10.6.5. the name, title and agency of the person in charge of the training.
10.7. Regulations of the host agency shall govern the conduct of the training program; however, each officer is required to attend and complete the full program and, if examinations are given, attain at least a 75% on the examination.
W. Va. Code R. § 149-2-11 Supervisory Level In-Service Training
11.1. Supervisory In-Service Training is applicable to those officers of exempt rank.
11.2. Supervisory level in-service training and firearms qualifications required by the Subcommittee for continued certification shall consist of the requirements as set forth in subsections 10.1. and 10.2. of this rule. In addition to the requirements in subsection 10.1. of this rule, superviors are required to complete 8 hours in a Subcommittee approved supervisory level in-service training program within a 24 month period. Up to 100% of the training may be completed as part of an on-line or web-based training program.
11.2.1. Certified law enforcement instructors may receive up to a maximum of 8 hours of supervisory level in-service training credit for teaching in a Subcommittee approved supervisory level in-service training course.
11.3. Curriculum for Supervisory In-Service Training.
11.3.1. Curricula for supervisory training should include, but is not limited to, the following subject matter: the role of the supervisor, supervisor/subordinate relationships, leadership, decision making, discipline, motivating and improving, reporting, interpersonal communications, the supervisor as a trainer, productivity, job stress, morale, evaluation of employee performance, budgeting and management by principles.
W. Va. Code R. § 149-2-12 In-Service Training Staffing
12.1. Instructors in all in-service training where training funds or in-service credit is desired shall meet the standards established by the Subcommittee for certification as set forth in section 5 of this rule.
W. Va. Code R. § 149-2-13 Certification of Law Enforcement Officers
13.1. Individual officers successfully completing an entry-level training program shall make written application to the Subcommittee requesting certification and shall demonstrate proof of the successful passage of the entry level law-enforcement examination set forth in subsection 13.7. of this rule.
13.2. Individual officers who are certifiable via the equivalent certification provision of W. Va. Code §30-29-5 and section of this rule shall make application to the Subcommittee for certification during the period that they are completing the training set forth in subdivision 14.1.5. of this rule.
13.3. The Director of an approved academy shall promptly provide to the Subcommittee the names of officers and their agencies successfully completing or failing to complete an entry-level training program or the entry level law-enforcement examination.
13.4. The certification of each law enforcement officer is reviewed annually following his or her first certification by the Subcommittee or its designee and the head of the officer’s employing West Virginia law enforcement agency to ensure employee compliance with the requirements set forth in this rule.
13.5. Certification may be revoked or suspended if any law enforcement officer fails to complete the applicable in-service training and firearms qualification requirements set forth in sections 10 and 11 of this rule.
13.6. As a requirement of certification, a law enforcement officer shall notify the Subcommittee within 10 days of being charged with a crime, excluding minor traffic offenses. A law enforcement officer who fails to notify the Subcommittee may have his or her certification revoked or suspended.
13.7. When required by W.Va. Code §30-29-5(b), each person requesting certification as a law-enforcement officer from the Subcommittee shall demonstrate that he or she has passed the entry level law-enforcement examination established in this section, which shall consist of the following:
13.7.1. Written testing requirements approved by the Subcommittee;
13.7.1.a. The minimum passing grade on the written test is 75%.
13.7.1.b. Applicants failing to obtain 75% on the written test may be allowed to retake the written test within 10 days after notice of the failure to pass. Applicants will be allowed to take the examination a maximum of 3 times, unless otherwise approved in the sole discretion of the Subcommittee for good cause shown.
13.7.1.c. In the event the applicant passes the second or third written test, he or she may proceed with the application process. The scores of the original written test and any subsequent written tests will be recorded on the applicant’s record.
13.7.1.d. Any applicant failing to pass after the third written test is not eligible for certification, unless otherwise approved by Subcommittee for good cause shown.
13.7.2. Documentation that the person continues to meet the medical standards as set forth in subsection 8.4. of this rule;
13.7.3. Performance of the physical ability standards as set forth in subsection 8.5. of this rule; and
13.7.4. A background check demonstrating that the person is of good moral character.
W. Va. Code R. § 149-2-14 Equivalent Certification
14.1. Applicants for certification as law enforcement officers in the State of West Virginia by the equivalent certification provision shall:
14.1.1. Have completed a Peace Officer’s Standards and Training Commission (POST) approved basic entry-level training program or equivalent federal law enforcement training, excluding military police;
14.1.2. Have been certified as a law enforcement officer in the state where the entry-level training was completed or by the federal government, with the certification having had no revocation or suspension action taken against it.
14.1.3. Give notice, upon employment to the Subcommittee of his or her desire to seek and be granted equivalent certification as a West Virginia law enforcement officer.
14.1.4. Submit a completed application, as defined in paragraph 8.2.1.a.of this rule, to the approved entry level training academy within 90 calendar days of their date of employment via the equivalent training provision of the law which shows that they meet the requirements for admission into an entry-level training program; and,
14.1.5. Complete the following entry-level courses within 12 months from the date of employment : Provided, that under extenuating circumstances the Subcommittee may grant a waiver:
14.1.5.a. Firearms Training and Certification;
14.1.5.b. Emergency Vehicles Operations Course;
14.1.5.c. Defensive Tactics;
14.1.5.d. Laws of Arrest;
14.1.5.e. West Virginia Motor Vehicle Law;
14.1.5.f. Criminal Law;
14.1.5.g. Domestic Crimes; and,
14.1.5.h. Laws of Search and Seizure.
14.2. Applicants for equivalent certification who have had their certification revoked or suspended by a POST, and are ineligible for re-certification from that POST, may not make application for equivalent certification in the State of West Virginia.
14.3. During the training set forth in subdivision 14.1.5. of this rule the applicant shall complete an application for certification to the submitted to the Subcommittee.
14.4. The Subcommittee shall form a review board which shall review all applications for equivalent certification. The equivalent certification review board shall determine if the applicant’s prior law enforcement training is equivalent to the current training standards in West Virginia, and make a recommendation to the law enforcement training sub-committee as to whether the applicant is eligible for equivalent certification. One member of this review board shall be the Director, or his or her deignee, of the West Virginia State Police Academy.
W. Va. Code R. § 149-2-15 Re-certification Requirements
15.1. The purpose of this section is to establish guidelines for the retraining of certified law enforcement officers who have not performed the duties and essential functions of an entry-level law enforcement officer as defined in subsection 8.3. of this rule and who have not obtained mandated in-service training as required by subsections 10.2. and 11.2. of this rule or qualified with their weapon as required in subsection 10.2. of this rule. For the purposes of this section, “separated” means any absence from duty, regardless of remedies or status available to the officer, which results in the officer not performing the duties of an entry-level law enforcement officer in West Virginia. This may include, but is not limited to the following: extended active military service; injuries or illness which result in the officer receiving temporary disability, sick leave, or workers compensation benefits; suspensions from an agency regardless of the final outcome; placement of an officer on light duty which exceeds 24 months; termination; or resignation.
15.2. Law enforcement officers, or law enforcement officials who desire to re-certify as a law enforcement officer, who have been separated from a law enforcement agency for 24 months or less; who are in good standing; and who were certified under the provisions of W. Va. Code §30-29-5; and have been reappointed as a law enforcement officer or law enforcement official by a law enforcement agency; are not required to meet entrance level standards again if:
15.2.1. Within 90 days from the date of employment the individual attends and completes the mandated in-service training for the period and rank; and,
15.2.2. Within 90 days from the date of employment the individual qualifies with his or her duty weapon.
15.3. Law enforcement officers, or law enforcement officials who desire to re-certify as a law enforcement officer, who have been separated from a law enforcement agency for more than 24 months, but less than 60 months; who are in good standing; and who were certified under the provisions of W. Va. Code §30-29-5; and have been reappointed as a law enforcement officer or law enforcement official by a law enforcement agency; are required to either test for credit in lieu of attending any of the classes required for re-certification or, attend and successfully complete within 12 months of the date of employment, the following courses : Provided, That the Subcommittee may grant a waiver under extenuating circumstances. The Subcommittee may, at its discretion, require a course to be completed and not allow a test for credit.
15.3.1. Firearms Training and Certification;
15.3.2. Emergency Vehicle Operations Course;
15.3.3. Defensive Tactics;
15.3.4. Laws of Arrest;
15.3.5. West Virginia Motor Vehicle Law;
15.3.6. Criminal Law Update;
15.3.7. Domestic Crimes; and,
15.3.8. Laws of Search and Seizure.
15.4. Law enforcement officers, or law enforcement officials who desire to re-certify as a law enforcement officer, who have been separated from a law enforcement agency in this state for more than 60 months must first receive the approval of the Subcommittee to be re-certified as a law enforcement officer under the process set forth in subsection 15.3. of this section. The Subcommittee, on review of the entry level training and other training completed by a law enforcement officer who has had such a separation, may prescribe training to be completed in addition to the classes set forth in subsection 15.3. of this section. When determined necessary by the Subcommittee the amount of additional training required may require that the law enforcement officer attend the full entry level training program in effect at the time that the review is being completed.
15.5. Within 90 calendar days of their date of employment, re-certification applicants who meet the guidelines set forth in subsection 15.3. of this section shall submit a completed application to the academy which shows they meet the requirements for admission to an entry-level training program.
15.6. Applicants for re-certification by prior arrangement with the academy may test for credit in any of the classes required for re-certification. If applicable, the applicant passes both written and practical tests at the academy standard to receive credit for the class. If the applicant does not meet the academy standard on any written or practical test, the applicant shall attend and meet the academy standard for each of the entry level courses failed by the applicant.
W. Va. Code R. § 149-2-16 Certification Denial, Suspension or Decertification
16.1. The Subcommittee may suspend, decertify, or deny the certification of a law enforcement officer or, if applicable, deny admission to a basic entry-level training program for activities that may include, but are not limited to the following:
16.1.1. Willful falsification of any information submitted or relied upon to obtain certified status;
16.1.2. Having a physical or mental condition affecting the officer’s ability to perform his or her duties as described in subsection 8.3. of this rule;
16.1.3. Addiction to or unlawful sale, possession, or use of narcotics, drugs, or drug paraphernalia;
16.1.4. Having admitted the commission of or been convicted of a felony or any crime involving dishonesty, unlawful sexual conduct, physical violence, or driving under the influence of alcohol or drugs, or having been placed in or participated in any pretrial diversion or equivalent program for the same;
16.1.5. Failure to complete required in-service training;
16.1.6. Failure to complete required firearms qualifications ;
16.1.7. Legal prohibitions that prevent an officer from performing some or all of his or her required law enforcement duties. It is the responsibility of the officer to report any such legal prohibitions to the Committee within ten (10) days;
16.1.8. Failure to report legal prohibitions as required by subdivision 16.1.6. of this rule;
16.1.9. His or her certification as a law enforcement officer has been suspended, denied or revoked by another state’s Peace Officers Standards and Training Commission;
16.1.10. An inability to lawfully carry a firearm under state and/or federal statute;
16.1.11. Failure to have made or met court ordered child support obligations as set forth in W. Va. Code §48-15-1, et seq.; and
16.1.12. Any conduct or a pattern of conduct unbecoming to a law enforcement officer or law enforcement official or activities that would tend to disrupt, diminish, or otherwise jeopardize public trust and fidelity in law enforcement.
16.2. Employment by another agency or reinstatement of a law enforcement officer by his parent agency after termination, whether termination was voluntary or involuntary, does not preclude suspension, revocation or denial of law enforcement certification, if the law enforcement officer was terminated for any of the reasons contained in this section.
16.3. Termination of a law enforcement officer, whether voluntary or involuntary, does not preclude suspension, revocation or denial of law enforcement certification, if the officer was terminated for any of the reasons contained in this section.
16.4. An employing agency shall not seek de-certification of a law enforcement officer prior to or in lieu of termination.
16.5. Law enforcement officers whose certification has been suspended, revoked or if applicable an applicant who has been denied admission to a basic entry-level training academy may not exercise any authority as a law enforcement officer during the period for which their certification is suspended, revoked or denied.
W. Va. Code R. § 149-2-17 Certified Law Enforcement Officers Separated from Employment
17.1. The certification of a law enforcement officer who is separated from his or her employment with any West Virginia law enforcement agency, shall immediately become inactive and remain inactive until the subcommittee authorizes reactivation of the officer’s certification pursuant to the procedure set forth in this section.
17.1.1. For the purposes of this section, “separated” means an absence from duty from any West Virginia law enforcement agency as a result of retirement, resignation, or termination.
17.1.2. A person whose law enforcement certification has become inactive and desires reactivation, shall apply to the subcommittee by proper application, to have his or her certification reactivated.
17.1.3. A person who is employed by multiple law enforcement agencies simultaneously who separates from employment from any of these agencies shall be considered to be separated as previously defined.
17.2. Whenever a law enforcement officer separates from a West Virginia law enforcement agency, the chief law-enforcement officer of that law enforcement agency shall notify the subcommittee, by a change of status form or electronic submission through the Law Enforcement Professional Standards Information System (LEPSIS), of the separation within ten days of the date of separation. Any law enforcement agency failing to submit a change in status form shall be listed in the annual report of Law Enforcement Professional Standards filed with the West Virginia Legislature. The notification of the separation from employment shall include, with specificity, the following reason or reasons the officer is no longer employed:
17.2.1. Retirement;
17.2.2. Resignation;
17.2.3. Retirement or resignation in lieu of termination;
17.2.4. Retirement or resignation while under investigation or allegations of misconduct; or
17.2.5. Termination
17.3. Request to reactivate an officer’s law enforcement certification.
17.3.1. Upon receipt of an application for reactivation, the Chair of the Subcommittee shall review the notification of separation received from the law enforcement agency with which the applicant was most recently employed. The Chair of the Subcommittee may grant the applicant a temporary reactivation of his or her certification until a final determination is made pursuant to subsection 17.5. of this rule. The Chair of the Subcommittee shall notify the Subcommittee of his or her actions and decisions.
17.3.2. Upon receipt of an application for reactivation, the Chair of the Subcommittee may request that the law-enforcement agency from which the applicant was most recently separated, to provide a copy of all information relevant to the applicant’s separation from employment.
17.3.3. To allow for the completion of the actions set forth in subdivisions 17.3.1. and 17.3.2. of this rule the Chair may empower an employee of the Division to act upon his or her behalf to ensure that these actions are completed.
17.4. Upon receipt of a request by the Subcommittee via certified mail or through electronic communications, the chief law-enforcement official of the law enforcement agency with which the applicant was most recently employed, or his or her designee, shall, within eight calendar days, provide the Subcommittee with a copy of information relevant to the applicant’s separation of employment or other information requested by the Subcommittee.
17.4.a. An applicant is entitled to a copy of all documents or other materials submitted to the Subcommittee related to the application.
17.5. Within 30 days of the receipt of any information provided by the law enforcement agency, the Subcommittee shall review the information and issue a final decision. The 30 days begin upon the Subcommittee’s receipt of all applicable documents, records, etc. requested or subpoenaed.
17.6. The Subcommittee shall approve an application for reactivation unless the Subcommittee affirmatively demonstrates, in writing, that the applicant has engaged in conduct that may result in his or her decertification, as provided in subsection 16.1. of this rule. Where information available to the Subcommittee indicates that the applicant has engaged in conduct that is in violation of this rule or other laws or rules, the Subcommittee may not grant the application for reactivation.
17.7. An applicant whose certification is not reactivated pursuant to a final decision of the subcommittee, may appeal the final decision of the Subcommittee pursuant to section of this rule and W.Va. Code §29A-4-1 et seq.
17.8. Nothing in this section shall be construed to require the rehiring of a person by a law enforcement agency from which he or she was separated, even though the Subcommittee authorizes his or her certification to be reactivated.
17.9. A law enforcement official, or appointing officer, or his or her designee, is immune from civil liability for providing to the Subcommittee any information required or requested by this section.
17.10. All information and materials collected as a result of this section shall be retained in a computer database.
17.10.1. The database shall be controlled by the Division and operated under rules and policies developed by the Division.
17.10.2. Information maintained in the database may be released to a law enforcement official based upon policies established by the Division and the Subcommittee.
W. Va. Code R. § 149-2-18 Subpoena Power
18.1. The Subcommittee may issue subpoenas for the attendance of witnesses and production of necessary evidence or documents in any proceeding, review or investigation relating to certification or hearing before it.
18.1.1. The Chair of the Subcommittee shall request that subpoenas be issued.
18.1.2.The Subcommittee may empower an employee of the Division to act on the Chair’s and its behalf as to the issuance of such subpoenas, their delivery, the receipt of information called for, to prepare information for presentation to the Subcommittee and to report findings to the Subcommittee.
W. Va. Code R. § 149-2-19 Certification Retention
19.1. Law enforcement officers certified under the provision of W.Va. Code §30-29-5 who have completed at least 60 months of full time employment as a certified law enforcement officer and who leave active law enforcement employment in good standing, as set forth in subsections 17.1. to 17.3. of this rule, may continue their law enforcement certification in the active status by:
19.1.1. Completing an application for certification reactivation and approval for certification continuation prior to or no later than 365 days after separation from active law enforcement employment;
19.1.2. Obtaining mandated in-service training as required for active officers under the rank of sergeant. Training periods are from July 1 of each year to June 30 of the next; and,
19.1.3. Qualifying with their weapon as required for active officers.
19.2. The individual shall provide the training and firearms qualification records to the Subcommittee during the appropriate training periods. In-service training and firearms qualifications must be maintained on an annual basis in order to retain law enforcement certification.
W. Va. Code R. § 149-2-20 Appeal of a Decision of the Subcommittee
20.1. An individual who has been denied entry into the entry level certification program, a trainee who has not been allowed to continue in the entry level training process an officer who has made application for his or her certification to be reactivated and that application has been denied, an officer or individual whose certification as a law enforcement officer or as an instructor has been denied, suspended or decertified pursuant to a final decision of the Subcommittee, may appeal that final decision of the Subcommittee to the Governor’s Committee on Crime, Delinquency and Correction.
20.2. On receipt of such an appeal in a timely manner the Governor’s Committee may designate the Executive Director of the Committee to hear the appeal. The Committee or Executive Director may appoint a hearing examiner to develop a record of the appeal by taking evidence on the matter and to make a recommended decision to the Committee or Executive Director pursuant to W. Va. C.S.R. § 149-1-1 et seq and W. Va. Code §29A-5-1 et seq.
149CSR2
149CSR2
Series 03 Protocol for Law Enforcement Response to Domestic Violence
W. Va. Code R. § 149-3-5 Domestic Violence Database
5.1. The Domestic Violence Database is a tool for the court to communicate domestic violence data with law enforcement. Orders are entered by family court or magistrate court staff when orders are issued. When data is entered or modified, a message is generated and sent to the National Crime Information Center (NCIC) Protection Order File which facilitates the enforcement of protection orders and the Federal firearms laws. (See W.Va. Code §48-27-802 and W.Va. Code §51-1-21.)
5.2. The Domestic Violence Database is used to confirm the status of a protection order and can also be used to serve a protective order. Orders can be printed out instantly once the requested record is identified.
5.3. Service of protective orders can be entered into the database by court staff and any law enforcement agency with access to a WEAPONS terminal. This allows law enforcement to make an arrest, if needed, if they know an order has already been served.
5.4. Law enforcement without access to a WEAPONS terminal can contact the WEAPONS agency in their county and request entry of the service data.
5.5. The Domestic Violence Database contains:
5.5.1. Information about the victim and the respondent,
5.5.2. The condition of the victim,
5.5.3. Whether firearms were used and are in the possession of the respondent,
5.5.4. Whether the protective order was served, and
5.5.5. A temporary or final order.
5.6. The Domestic Violence Database should be checked:
5.6.1. If responding to an issue and there is an active domestic violence protective order;
5.6.2. To see if there were firearms on the property, in the possession of the respondent and where they are located;
5.6.3. To determine the conditions of the protective order;
5.6.4. To confirm the protective order has been served (and to attempt service if the protective order has not been served); and,
5.6.5. To confirm the protective order is in effect. §149‑3‑6. Dispatcher/Telecommunicator Responsibilities.
6.1. Dispatchers/Telecommunicators who provide service to police department and communications and emergency operations centers which dispatch the law enforcement officer shall dispatch domestic violence calls in the same manner as any other call for police assistance, in accordance with the priority criteria prescribed by generally applicable department procedures. Whenever possible, the dispatcher/telecommunicator should assign a back‑up unit.
6.2. The dispatcher/telecommunicator receiving a domestic violence call shall attempt to elicit from the caller, and be able to communicate to the responding law enforcement officer, as much of the following information, in the following order of importance, as time and exigencies of the reported incident allow:
6.2.1. The nature of the incident;
6.2.2. The address of the incident, including the apartment number or the name of the business, as appropriate;
6.2.3. A telephone number where the caller can be called back;
6.2.4. Whether weapons are involved or present and if so, where they are located;
6.2.5. Whether or not there are any injuries and whether or not an ambulance is needed;
6.2.6. Whether strangulation, suffocation or asphyxiation has been reported, has occurred, or is suspected and if so, dispatcher/telecommunicator shall dispatch EMS;
6.2.7. A description of the accused and whether or not the accused is present and, if not, the most likely location, direction of flight, and mode of travel of the accused;
6.2.8. Whether other individuals, including children, are at the scene;
6.2.9. Whether any party is using or is under the influence of alcohol or drugs or has a history of violence, cognitive or mental illness;
6.2.10. Whether a protective order is in effect;
6.2.11. If the caller is the victim and in the residence, would they consent to entry;
6.2.12. Whether a criminal warrant is outstanding on the accused; and,
6.2.13. Whether the accused has been released on bond.
6.3. If the caller is the victim, or if the caller is a witness to a domestic violence incident in progress, the dispatcher/telecommunicator shall attempt to keep the caller on the telephone and relay ongoing information provided by the caller to the responding law enforcement officer and EMS if dispatched. The dispatcher/telecommunicator shall tell the caller that help is on the way and when the police may arrive.
6.4. If the dispatcher/telecommunicator has ready access to police department records, all information relevant to the situation shall be relayed to the officer. At the direction of the law enforcement officer the dispatcher/telecommunicator shall access the Domestic Violence Database, National Crime Information Center (NCIC), and other criminal information databases to determine whether the parties involved in the incident have been involved previously in domestic violence incidents or whether there is a protective order involving the parties in effect, and relay that information to the responding law enforcement officer.
6.5. If the dispatcher/telecommunicator has reason to believe that the accused is on bond for a crime against a family or household member, including a family or household members who are children, and if the dispatcher/telecommunicator has ready access to magistrate court records that show whether there are conditions of bond, the dispatcher/telecommunicator should consult the records and communicate any relevant information to the responding law enforcement officer; including the existence of a protective order prohibiting the possession of firearms.
W. Va. Code R. § 149-3-7 Initial Law Enforcement Officer Response
7.1. Approaching the scene.
7.1.1. Whenever possible, at least two law enforcement officers shall respond to a domestic violence call. The responding law enforcement officer should approach the scene of a domestic incident as one of high risk.
7.1.2. The law enforcement officer should obtain all available information from the dispatcher/telecommunicator before arriving at the scene and should notify the dispatcher/telecommunicator upon arrival.
7.1.3. Unless the circumstances of a particular incident require different measures, the law enforcement officer should follow the approach procedures set out in the remainder of this section. The law enforcement officer should:
7.1.3.a. Approach the scene inconspicuously. The law enforcement officer should not use sirens or lights in the immediate area of the scene of the incident;
7.1.3.b. Park away from the immediate scene of the incident;
7.1.3.c. Keep a safe exit route in mind;
7.1.3.d. Be alert for the employment of weapons from doors, windows, or nearby vehicles;
7.1.3.e. Be alert for persons moving away from the immediate scene of the incident; and,
7.1.3.f. Employ other standard precautionary measures for approaching high risk incident scenes.
7.2. Initial contact.
7.2.1. The responding law enforcement officer should identify himself or herself, explain the law enforcement presence, and request entry into the residence or business. The law enforcement officer shall ask to see the person who is the subject of the call. The law enforcement officer shall not reveal the caller’s name.
7.2.2. If a domestic violence protective order is in effect, the law enforcement officer may enter for the purpose of enforcing the protective order if written or verbal consent has been given to do so. Written consent to enter may have been given by the victim/petitioner on the domestic violence protective order petition which will be on file with the court or contained on the domestic violence database.
7.2.3. In some exigent circumstances, forced entry is necessary and appropriate. Exigent Circumstances include but are not limited to:
7.2.3.a. The residence area shows signs of a fight or scuffle;
7.2.3.b. When a person from inside the residence calls for assistance or is yelling;
7.2.3.c. When law enforcement officer has reason to believe that the person is wounded, injured, or is otherwise in need of assistance;
7.2.3.d. When the accused is suspected of concealing the victim;
7.2.3.e. When the call came from the residence and the victim is identified as the caller and entry is denied by others present on the scene;
7.2.3.f. When the officer has articulable suspicion that serious bodily injury or death may result if entry is not immediate.
7.3. Establishing control of scene.
7.3.1. Once at the scene of the incident, the responding law enforcement officer should establish control by:
7.3.1.a. Identifying and securing potential weapons;
7.3.1.b. Separating the victim and the accused when circumstances are appropriate;
7.3.1.c. Assessing injuries (including inquiry about possible internal injuries), administering first aid, and notifying emergency medical services as necessary (Due to high lethality and possibility of delayed death, if strangulation, suffocation, or asphyxiation is reported, or suspected, the officer shall request EMS respond to the scene);
7.3.1.d. Identifying all occupants and witnesses on the premises;
7.3.1.e. Separating occupants and witnesses from the victim and accused and keeping them out of hearing range (to avoid compromising their witness status), and,
7.3.1.f. Maintaining visibility and restricting mobility of all persons present at the scene.
7.4. On‑scene investigation.
7.4.1. The law enforcement officer shall conduct an investigation using the same procedures that the law enforcement officer would use in any other on-scene criminal investigation. While conducting the investigation the law enforcement officer shall attempt to establish the existence of credible corroborative evidence. The law enforcement officer shall make specific note of and document all statements made by the victim, accused and all witnesses, including children, particularly those statements that may be admissible as evidence as exceptions to the hearsay rule such as excited utterances, present sense impression and statements made for medical treatment. The law enforcement officer shall also determine if such statements were made to the dispatcher/telecommunicator and take appropriate measures to secure and preserve such evidence.
7.4.2. The law enforcement officer should ensure the victim’s safety and privacy by interviewing the victim in an area apart from the accused, witnesses, and bystanders if possible.
7.4.3 While interviewing the victim, the law enforcement officer should use trauma informed interview techniques. The law enforcement officer should not tell the victim what action the law enforcement officer intends to take until all available information has been collected.
7.4.4. The law enforcement officer should talk to and document the victim and any witnesses (including all child witnesses) as fully and as soon as circumstances allow, taking down names, addresses, and other relevant information. These discussions should be conducted consistent with the information in subdivisions 7.5.10. and 7.5.11. of this rule. When talking to the victim and any witnesses (including all child witnesses) law enforcement officer should determine whether the victim and any witnesses (including all child witnesses) allege facts establishing probable cause that criminal activity has occurred. If so, the law enforcement officer should inquire whether the victim and any witnesses are willing to sign a statement containing those facts.
7.4.5. On all incidents of domestic violence requiring a report pursuant to §48-27-801, the law enforcement officer shall conduct a private interview with the victim utilizing “Dangerousness-Lethality Information form for Use by Law Enforcement Officers” included in the “Dangerous-Lethality Assessment Guide” as approved by the “Rural Access in Criminal and Civil Systems” committee and distributed by the West Virginia State Police. The “Dangerousness-Lethality Information form for Use by Law Enforcement Officers” shall be attached to the police incident report and any lethality indicators found should be summarized on the criminal complaint. Summarization on the complaint should include information determined to be pertinent by the officer through the course of their investigation.
7.4.6. The law enforcement officer should proceed with the investigation even in the absence of a statement from both a victim and any witnesses (including child witnesses). Again, these discussions should be conducted consistent with the information in subdivisions 7.5.10. and 7.5.11. of this rule. Proceed with the understanding that there may be no further assistance from the victim.
7.4.7. The responding law enforcement officer should interview the accused as fully as circumstances allow, inquiring about the nature of the domestic violence, and document the information obtained. The law enforcement officer should be alert to possible incriminating statements.
7.4.8. In cases where the accused or victim does not speak English, law enforcement officer should use a neutral interpreter. Officers shall not use family, friends, and especially children, to provide interpreter services.
7.4.9. If the accused has fled the scene, the law enforcement officer should gather information as to the possible whereabouts of the accused (place of employment, relatives, friends, etc.). The law enforcement officer should make reasonable efforts to locate and interview the accused as to any statements or evidence they may wish to provide prior to arrest or obtaining a warrant.
7.4.10. The law enforcement officer shall collect and preserve all physical evidence reasonably necessary to support prosecution, including evidence substantiating the victim’s injuries, evidentiary articles that substantiate the attack (weapons, torn clothing, etc.), and evidence recording the crime scene. The law enforcement officer should ensure that photographs are taken of visible injuries on the victim and of the crime scene. The law enforcement officer shall document the location of any injuries that may result in potential bruising. The law enforcement officer shall document all evidence that supports a violation of any WV state code. All physical evidence shall be collected, noted in reports, and vouchered as in other criminal investigations.
7.4.11. The law enforcement officer should encourage the victim to seek medical attention for injuries that do not require emergency treatment at the scene. The law enforcement officer should inquire about injuries of the victim that are concealed by clothing or otherwise not readily apparent.
7.5. On Scene Investigation When Children are Present.
7.5.1. If a law enforcement officer has reasonable cause to suspect that a child is neglected or abused or observes the child being subjected to conditions that are likely to result in abuse or neglect, the law enforcement officer shall immediately report the circumstances to Child Protective Services (CPS) pursuant to W.Va. Code §49-2-803. The law enforcement officer should provide notification to an adult caretaker of the child who is not the perpetrator of the abuse.
7.5.2. In addition to the domestic violence crimes, assess for crimes against children pursuant to W.Va. Code §61-8D-1, et seq.
7.5.3. If the victim is the sole caretaker of a child and can no longer provide care (for example, when the victim is hospitalized) and is not incapacitated, the officer shall consult with the victim about arrangements for the child. If the accused is arrested and was the sole caretaker of a child or if both caretakers are arrested, the law enforcement officer shall contact Child Protective Services (CPS). CPS will determine whether there is a responsible relative who can care for the child. The law enforcement officer shall remain with the child until CPS arrives.
7.5.4. Determine the location of all children. Check to see if they are hurt.
7.5.5. Keep children with adults the children know when safe and appropriate.
7.5.6. Provide victim parent with information about safety and resources.
7.5.7. Help support victim parent (to help them care for their children).
7.5.8. It is recommended to not arrest in front of the children.
7.5.9. If there has been a murder, suicide, or serious bodily injury of any household member, after making a mandated report to CPS, refer family/caregiver for children to community resources that provide trauma-informed care.
7.5.10. When assessing for child wellbeing, the following is recommended:
7.5.10.a. Speak at children’s level by sitting or squatting;
7.5.10.b. Describe your role in simple terms;
7.5.10.c. Talking with children on scene is not the same as a forensic interview conducted by a trained forensic interviewer. The on-scene engagement of children is primarily for the purpose of checking for safety, controlling the scene, comforting the child, and documenting statements, excited utterances, and demeanor of the child;
7.5.10.d. Don’t force the child to speak;
7.5.10.e. Refrain from talking badly about either parent in front of children;
7.5.10.f. Don’t say everything will be okay, or make promises you cannot keep;
7.5.10.g. Reassure children that the violence was not their fault; and,
7.5.10.h. Explain to children why any law enforcement use of force was necessary.
7.5.11. When assessing harm to children at the scene of a domestic violence call, assess for:
7.5.11.a. Injuries;
7.5.11.b. If children are in imminent danger;
7.5.11.c. The need to take custody without a court order in cases of abandonment or medical neglect pursuant to W.Va. Code §49-4-301; and,
7.5.11.d. Whether or not children are at risk of substantial harm due to domestic violence as determined by the following indicators (if children are at risk of substantial harm due to domestic violence, make a report to child protective services):
7.5.11.d.i. Proximity of the children to the domestic violence;
7.5.11.d.ii. Nature of the violence or crime;
7.5.11.d.iii. Child physically intervening;
7.5.11.d.iv. Child forced to participate in the domestic violence;
7.5.11.d.v. Use of weapons or objects that could cause harm in the presence of children;
7.5.11.d.vi. Direct threats (including verbal threats) of serious bodily injury or death to or regarding children;
7.5.11.d.vii. A domestic violence offender with indicators of highly dangerous/potentially legal behaviors;
7.5.11.d.viii. Past criminal history of child abuse and/or neglect; and,
7.5.11.d.ix. Criminal history of domestic violence related crimes.
7.5.12. The law enforcement officer should make a Handle With Care notification where the program is available. W.Va. Code §7-26-2(b) provides that sheriffs of each county of the state to provide Handle With Care program training to law-enforcement supervisors and patrols and actively participate in and use all law enforcement-related components of the Handle With Care program.
7.5.13. The law enforcement officer shall document any statements, information, excited utterances, and demeanor of the child (pursuant to §7.4.1. of this rule).
7.6. Enforcing any protective orders or bond conditions.
7.6.1. To determine the existence of a protective order, ask the victim whether there is a valid protective order in effect, the officer should attempt to verify the existence of an order by accessing the statewide domestic violence database, NCIC, and identifying the issuing county and court. The law enforcement officer shall enforce all orders. Where the respondent has been served with the protective order or has actual notice of the protective order, then the law enforcement officer shall follow the arrest authorization provisions as set forth in this rule. (See W.Va. Code §48-27-1001.)
7.6.2. If a law enforcement officer determines that an otherwise valid protective order cannot be enforced because the respondent has not been notified of or served with the order, the officer shall inform the respondent of the content of the order and make a reasonable effort to serve any available copy of the order upon the respondent. The officer shall allow the respondent a reasonable opportunity to comply with the order, such as vacating the premises, surrendering firearms, etc. Once the officer has notified or served the respondent, and the respondent fails to comply with the order, the officer shall enforce the order. (See W.Va. Code §48-27-1001.)
7.6.2.a. If the officer serves the protective order on the respondent, the officer ensures the service is recorded in the Domestic Violence Database.
7.6.3. If the officer makes verbal notice, the officer shall notify the respondent of the following minimum mandatory relief:
7.6.3.a. Order the respondent to refrain from abusing, harassing, stalking, threatening or otherwise intimidating the petitioner or the minor children, or engaging in other conduct that would place the petitioner or the minor children in reasonable fear of bodily injury.
7.6.3.b. Inform the respondent that he or she is prohibited from possessing any firearm or ammunition, notwithstanding the fact that the respondent may have a valid license to possess a firearm, and that possession of a firearm or ammunition while subject to the court's protective order is a criminal offense under federal law.
7.6.3.c. Inform the respondent that the order is in full force and effect in every county of this state.
7.6.4. The law enforcement officer shall document the notification by contacting the local 911 center, state police center or their own agency (if they have access to the database) to record notification on the WV statewide domestic violence database and submitting the return of service in writing to the circuit clerk’s office within 24 hours.
7.6.5. Verbal notification does not relieve the agency or officer from serving the order.
7.6.6. If the victim is aware of pending criminal charges against the accused and bond conditions, the law enforcement officer should verify such information by contacting the local law enforcement department specified by the victim or the issuing court to verify the conditions of release on bond.
7.7. Violations of Protective Orders.
7.7.1. Pursuant to W. Va. Code §62-1C-17c(d), when the law enforcement officer observes any violations of a known bond condition in cases of crimes between family or household members, including family or household members who are children, the law enforcement officer shall arrest the accused for violations of the bond conditions; which may include the presence of the accused at the residence of the victim. (See W.Va. Code §48-27-1001(c).)
7.7.2. The law enforcement officer shall enforce all protective or similar type orders that have been issued by a circuit judge, family court judge or magistrate of this state, and from courts of another state, territory, or tribe.
7.7.3. In addition to being charged for the violation of a protective order, a person should be charged with any other crimes committed during the violation.
7.7.4. The law enforcement officer shall provide for the safety of the parties and remain at the location when they are ordered to accompany one or both of the parties to obtain personal property or other items from a location, including temporary possession of motor vehicles owned by either or both of the parties.
7.7.5. Notwithstanding the issue of violation of the state law, the crossing or causing the crossing of a state line or territory or tribal boundary to violate a valid protective order is a violation of federal law and should also be referred to federal authorities.
7.8. Missing Persons Investigation; Domestic Violence.
7.8.1. A law enforcement agency, under WV Code §48-27-601(e), shall initiate a missing persons investigation if the agency:
7.8.1.a. Has possession of a valid protective order, or has notice of the existence of a protective order which is in effect, or has been expired for a period of less than thirty (30) days, and receives a report that a person protected by the order has been reported missing; or,
7.8.1.b. Receives information that at the time of disappearance the missing person was subjected to domestic violence.
7.8.2. The investigating officer cannot release the whereabouts of the alleged missing person, if found, without expressed consent of that person.
7.9. Follow-up Investigation; Domestic Violence.
7.9.1. All domestic violence reports prepared by the law enforcement officer should be reviewed and given follow-up investigation as needed.
7.9.2. Follow up investigations should include the following:
7.9.2.a. Take photographs of injuries approximately two days after the incident to exhibit changes in injury as well as the long-term effects of abuse. Contact or meet the victim at a safe location if necessary, such as his or her work place.
7.9.2.b. Obtain all available medical reports after receipt of medical release from the victim.
7.9.2.c. Obtain a copy of 911 recordings, body camera video, or other communications with police or emergency personnel.
7.9.2.d. Preserve all body camera footage involving domestic violence.
7.9.2.e. Interview victims and witnesses who were physically or emotionally unable to be properly interviewed or to provide a statement at the time of the incident due to victim trauma. Interviews should also include the victim’s family members, previous intimate partners of the accused, and as necessary interview family of the accused.
7.9.2.f. Interview potential witnesses (neighbors, co-workers, friends, etc.).
7.9.2.g. Ascertain if the accused is on parole or probation or bond and obtain the name and contact the parole or probation officer.
7.9.2.h. Obtain all corrections facilities telephone and communication logs associated with the accused. (i.e. jail calls, emails, video calls and visitor contact list).
7.9.2.i. Conduct a complete NCIC check, and, if possible, a criminal history check of the accused.
7.9.2.j. Collect all types of threatening communication (sent by the accused to the victim, family members and friends) to include: letters, cards, emails, text messages, social media, and notes. §149‑3‑8. The Arrest Decision.
8.1. The responding law enforcement officer should arrest the accused whenever arrest is authorized. A law enforcement officer who does not make an arrest after investigating a complaint of domestic violence or who arrests two or more persons for a crime involving domestic violence shall submit in writing on the required domestic violence incident report pursuant to WV code §48-27-801 setting forth the grounds for not arresting or for arresting both parties. Officers shall not threaten, suggest, or otherwise indicate the possible arrest of all parties, or threaten to call CPS to discourage requests for intervention by law enforcement by any party.
8.2. Arrest without a warrant is authorized in the following circumstances:
8.2.1. When the law enforcement officer has probable cause to believe that the accused has committed a felony; (See W.Va. Code §60A-5-501.)
8.2.2. When the law enforcement officer observes the commission of a felony or a misdemeanor; (See W.Va. Code §60A-5-501.)
8.2.3. When the law enforcement officer observes the violation of a valid protective order, including the presence of the accused at a location prohibited by the protective order; the officer shall arrest the accused provided the accused was served with the order or had actual notice of the order and its contents; (See W.Va. Code §60A-5-501.)
8.2.4. When the law enforcement officer observes any violation of a condition of bond, probation, or parole, including the presence of the accused at the residence of the victim in violation of the condition set in cases of crimes between family or household members as defined in W.Va. Code §48-27-204;
8.2.5. When the accused is alleged to have committed domestic assault, domestic battery, or a violation of a valid protective order; a law enforcement officer has authority to arrest when:
8.2.5.a. The law enforcement officer has observed credible corroborative evidence that the offense has occurred; and either:
8.2.5.b. The law enforcement officer has received, from the victim or a witness, an oral or written allegation of facts constituting a violation of W.Va. Code §61-2-28; or,
8.2.5.c. The law-enforcement officer has observed credible evidence that the accused committed the offense.
8.3. When a misdemeanor or felony not included among those specified in this rule has been committed and the law enforcement officer or another person obtains or has previously obtained an arrest warrant; or,
8.4. When a capias has been issued, or when a circuit judge has signed an attachment order.
8.5. Notwithstanding the issue of violation of the state law, the crossing or causing the crossing of a state line or territory or tribal boundary to commit domestic violence is a violation of federal law and should also be referred to federal authorities.
8.6. The law enforcement officers shall not consider the following factors in making the arrest decision:
8.6.1. The marital status of the parties;
8.6.2. The ownership or tenancy rights of either party;
8.6.3. Verbal assurances that the violence will stop;
8.6.4. A claim by the accused that the victim provoked or perpetuated the violence;
8.6.5. Speculation that the victim or witnesses will not follow through or cooperate with criminal prosecution (whether based on prior incidents involving the same victim, the victim's hesitancy about pursuing prosecution, or any other factor);
8.6.6. The disposition of any previous police calls involving the same victim or accused;
8.6.7. Speculation that the arrest may not lead to a conviction;
8.6.8. The existence or nonexistence of a current protective order (except insofar as the violation of the order requires arrest);
8.6.9. Concern about reprisals against the victim;
8.6.10. Adverse financial consequences that might result from the arrest;
8.6.11. That the incident occurred in a private place; or,
8.6.12. The racial, cultural, social, political, or professional position or sexual orientation of either the victim or the accused.
8.6.13. Criminal history of the victim
8.7. The law enforcement officer should not consider the victim’s opposition to arrest and should emphasize to the victim, and to the accused as well, that the criminal action thus initiated is the state’s action, not the victim’s action. It is the law enforcement officer’s or prosecuting attorney’s responsibility to decide whether an arrest should be made unless the law enforcement officer is required to make an arrest for violation of a valid protective order or a violation of the terms and conditions of bond, probation, or parole on a charge of a crime against a family or household member.
8.8. If the law enforcement officer responds to a scene involving domestic or family violence from two or more persons accusing each other of perpetrating violence, the law enforcement officer shall evaluate each complaint to determine who was the predominant aggressor. If the law enforcement officer determines that one person was the predominant aggressor, the law enforcement officer shall arrest the predominant aggressor only. Dual arrests are discouraged. In determining whether a person is the predominant aggressor the law enforcement officer should consider, among other things:
8.8.1. The presence of highly dangerous/potentially lethal behaviors;
8.8.2. Prior complaints of domestic or family violence;
8.8.3. The relative severity of the injuries inflicted on each person in relation to the use of reasonable force by a person acting in self-defense;
8.8.4. Whether one of the persons using reasonable force acted in self-defense; and,
8.8.5. The person initiating the first physical contact does not determine the predominant aggressor.
8.9. Firearms
8.9.1. The law enforcement officer shall seize all firearms, ammunition, and any other weapons that are alleged to have been involved or threatened to be used in the commission of domestic violence.
8.9.2. The law enforcement officer may seize a weapon that is in plain view of the officer, or is discovered pursuant to a consensual search, or is necessary for the protection of the officer or other persons.
8.9.3. The law enforcement officers shall seize all firearms and ammunition possessed in violation of a protective order prohibiting possession of a firearm. (See W.Va. Code §48-27-502.)
8.9.4. Notwithstanding the issue of violation of the West Virginia Code §61-7-7, the possession of a firearm by a person subject to a valid protective order, may also be a violation of federal law and should be referred to federal authorities. §149‑3‑9. Effectuating the Arrest.
9.1. Persons arrested pursuant to this rule, shall appear before a magistrate within the county in which the offense charged is alleged to have been committed in a manner consistent with the provisions of Rule 1 of the Administrative Rules for the Magistrate Courts of West Virginia.
9.2. The arresting law enforcement officer should inform the magistrate or court of any circumstances surrounding the arrest of the accused which would have an effect on conditions of bond, provided that the amount and conditions of bond are a judicial decision that rests solely with the magistrate or court. The officer present at the arraignment should convey information regarding highly dangerous/potentially lethal behaviors of the offender to the magistrate.
9.3. The risk is high in domestic violence cases that the accused will return to the victim's residence or the scene of the violence. If the accused has fled the scene, the law enforcement officer should initiate procedures to pursue and apprehend the accused as promptly as possible. If a warrant is necessary, the law enforcement officer should obtain and execute the warrant as soon as practical.
9.4. When the accused is a minor (under 18 years of age), the provisions of this rule are fully applicable, except that the law enforcement officer should arrest and process the juvenile pursuant to W.Va. Code §49-4-705. §149‑3‑10. Procedure when Arrest is not Made.
10.1. If an arrest is not made the law enforcement officer should:
10.1.1. Explain to the victim the reasons that an arrest is not being made;
10.1.2. Advise the victim of the applicability of criminal laws, procedures for filing a criminal complaint regarding violations of a protective order, the availability of a petition for a protective order, the procedures for filing a petition, and the remedies an order may contain;
10.1.3. Encourage the victim to contact the nearest available domestic violence program for information regarding services available to victims of domestic violence;
10.1.4. Inform the victim that the law enforcement officer will provide transportation for or facilitate transportation of the victim to a shelter or the appropriate court when reasonable cause exists to believe that a person is a victim of domestic violence or is likely to be a victim of domestic violence. Make reasonable efforts to assure victim safety. (See W.Va. Code §48-27-702.) Provided that the victim has contacted the shelter for approval for entrance and has given consent to transport.
10.2. The law enforcement officer should not become involved in the disposition of personal property, the ownership of which is in dispute except as provided in subdivision 7.7.4. of this section. In the absence of an arrest, the law enforcement officer should remain neutral and be concerned primarily with maintaining the peace and safety of those persons present. §149‑3‑11. Other On‑Scene Assistance to Victims and Dependents.
11.1. Whether or not an arrest is made, the responding law enforcement officer should not leave the scene of the incident until the situation is under control and the likelihood of immediate violence has been eliminated. The law enforcement officer should stand by for a reasonable period of time while victims or other persons desiring to leave gather necessities for short-term absences from residence, such as clothing, medication, and necessary documents.
11.2. Whether or not an arrest is made, the responding law enforcement officer is required by W. Va. Code §48-27-702 and §48-27-101 et. seq to notify the victim orally or in writing of the availability of a local domestic violence program, crime victim compensation fund, and other services in the community, and civil and criminal remedies such as: the right to file for a protective order and the right to file a criminal complaint if there is a violation of an existing protective order.
11.3. If an arrest is made or an arrest warrant obtained, the law enforcement officer should:
11.3.1. Advise the victim of what will happen next, including the probability that the accused will be in custody for only a short period of time; and
11.3.2. Obtain from the victim information to be included in the arrest report indicating any special conditions of bond that should be requested at the initial appearance before the magistrate (i.e., places where the accused should be specifically prohibited from appearing).
11.4. The law enforcement officer responding to an alleged incident of abuse shall, in addition to providing the information required in subsection 101.2. of this rule, provide transportation for or facilitate transportation of the victim, upon the request of the victim, to a shelter or the appropriate court when there is reasonable cause to believe that a person is a victim of domestic violence or is likely to be a victim of domestic violence. Make reasonable efforts to assure victim safety.
11.5. When the law enforcement officer has a reasonable suspicion that an animal is a victim of cruel or inhumane treatment, he or she shall report the suspicion to the county humane officer within twenty-four hours of the response to the alleged incident of domestic violence.
11.6. Incapacitated or vulnerable adult victims.
11.6.1. The law enforcement officer should attempt to provide and secure appropriate care and assistance for the well-being of an incapacitated or vulnerable adult including referrals to licensed domestic violence programs and Adult Protective Services (as mandated in W.Va. Code §9-6-9) when:
11.6.1.a. The accused is the sole caretaker and an arrest is indicated; or
11.6.1.b. The victim of domestic violence is the sole caretaker and the victim can no longer provide care (for example, when the victim is hospitalized).
11.6.2. If there is no one available to assist the incapacitated or vulnerable adult, or if the incapacitated or vulnerable adult appears not to be mentally alert, the law enforcement officer should make an emergency referral to Adult Protective Services. The law enforcement officer should remain at the residence until the Adult Protective Services worker arrives, or should transport the incapacitated or vulnerable adult to a medical facility, or other appropriate place where the incapacitated or vulnerable adult can wait for the worker.
11.6.3. In addition to providing the notification required by other provisions of this rule, the law enforcement officer should advise the incapacitated or vulnerable adult of the availability of protective services through Adult Protective Services. §149‑3‑12. Reporting.
12.1. An incident report, required by W.Va. Code §48-27-801, shall be completed by the law enforcement officer responding to any call covered by this rule.
12.2. On all incidents of domestic violence requiring a report pursuant to W.Va. Code §48-27-801, the law enforcement officer shall conduct a private interview with the victim utilizing “Dangerousness-Lethality Information form for Use by Law Enforcement Officers” included in the “Dangerous-Lethality Assessment Guide” as approved by the “Rural Access in Criminal and Civil Systems” committee and distributed by the West Virginia State Police. The “Dangerousness-Lethality Information form for Use by Law Enforcement Officers” shall be attached to the police incident report and any lethality indicators found should be summarized on the criminal complaint. Summarization on the complaint should include information determined to be pertinent by the officer through the course of their investigation.
12.3. Data collection.
12.3.1. All reports on the same person should be kept together or cross‑referenced so that repeat domestic violence can be monitored.
12.3.2. The report, or another document or computer entry generated from the report, shall become a domestic violence tracking report.
12.3.3. To the extent possible, the domestic violence tracking report shall be accessible to dispatchers/telecommunicators and the law enforcement officer.
Series 04 Community Corrections Standards
W. Va. Code R. § 149-4-1 General
1.1. Scope. -- This legislative rule establishes minimum standards for community corrections programs. This rule also creates a mechanism for communities to implement and maintain community corrections programs designed to provide the judicial system with sentencing alternatives for those offenders that may require less than institutional custody.
1.2. Authority. -- W. Va. Code §62-11C-3.
1.3. Filing Date. -- June 27, 2003.
1.4. Effective Date. -- July 1, 2003.
W. Va. Code R. § 149-4-2 Definitions
2.1. “Community Corrections Act” refers to the provisions of W. Va. Code §§62-11C-1 et seq.
2.2. “Community Corrections Program” means the plan or system of diversion services of a unit of government outlined in the Community Corrections Act. A program may be organized by the local community criminal justice board or by application of a local chief probation officer, with the written approval of the chief judge of the circuit, with a showing of local community and local criminal justice system involvement in the program.
2.3. “Community Corrections Subcommittee” means the group, established in W. Va. Code §62-11C-2, that is charged with developing standards and assisting the Governor’s Committee on Crime, Delinquency and Correction in administering the Community Corrections Act.
2.4. “Community Criminal Justice Board” means the board, established by W. Va. Code §62-11C-6, that is charged with establishing, coordinating, overseeing and maintaining community corrections programs at the local level.
2.5. “Proposal Application” means the document developed by the Community Corrections Subcommittee to be completed by the applicant. The proposal application conveys appropriate information to review local community corrections programs whether they are seeking approval of the program, or state funding of the program.
2.6. “Special Conditions and Assurances” means those conditions and assurances listed on the proposal application which the applicant certifies it will comply with if approval of the proposal application is granted by the Community Corrections Subcommittee on behalf of the Governor’s Committee on Crime, Delinquency and Correction.
2.7. “State Funds” means the funds collected and placed in a special revenue account, established by W. Va. Code § 62-11C-4, that are to be disbursed, as they are available, by the Governor’s Committee on Crime, Delinquency and Correction. This term does not apply to local participation fees provided for in the Community Corrections Act.
W. Va. Code R. § 149-4-3 Community Corrections Programs Standards
3.1. The purpose of this section is to establish the minimum standards of a community corrections program for adult offenders. The Community Corrections Subcommittee will utilize these standards as criteria to determine if a community corrections program is eligible for approval and funding.
3.2. Core Elements. -- Community corrections programs shall include the following four (4) core elements.
3.2.a. Intake and Risk and Needs Assessment. -- Community corrections programs shall utilize a research based intake and risk and need assessment tool that addresses the following elements:
3.2.a.1. Drug and alcohol screening.
3.2.a.2. Criminal history.
3.2.a.3. Known associates.
3.2.a.4. Community support system.
3.2.a.5. Education needs.
3.2.a.6. Treatment needs.
3.2.a.7. Mental health needs.
3.2.a.8. Employment needs.
3.2.a.9. Substance abuse history.
3.2.a.10. Established criteria to remove an offender from the Community Corrections Program.
3.2.b. Services. -- Based upon community corrections program type, necessity and community availability, community corrections programs shall consider the following services:
3.2.b.1. Case management.
3.2.b.2. Individual and group treatment.
3.2.b.2.A. Alcohol and drug treatment through a state certified provider(s).
3.2.b.2.B. Domestic violence counseling through a licensed provider(s).
3.2.b.2.C. Sex offender treatment through an educated, experienced and reputable provider(s).
3.2.b.2.D. Anger management counseling.
3.2.b.2.E. Financial management counseling.
3.2.b.3. Education.
3.2.b.3.A. General Educational Development preparation.
3.2.b.3.B. College preparation.
3.2.b.3.C. Vocational and technical training.
3.2.b.4. Community service and restitution.
3.2.b.5. Victim and offender mediation that meets national standards.
3.2.b.6. Cognitive restructuring.
3.2.b.7. Mental health services that utilizes a community mental health center or a trained mental health services provider.
3.2.b.8. Drug and alcohol screening.
3.2.b.9. Monitoring of court ordered medications.
3.2.b.10. Home-placement services.
3.2.c. Reentry and Aftercare -- Community corrections programs may link with a local workforce investment board or similar entity that provides one or more of the following types of services:
3.2.c.1. Job and vocational training.
3.2.c.2. Job placement.
3.2.c.3. General Educational Development testing.
3.2.c.4. Treatment services
3.2.d. Community Corrections Program Evaluation. -- A written plan shall be developed which measures the success of a community corrections program that includes the following elements:
3.2.d.1. Goals.
3.2.d.2. Objectives.
3.2.d.3. Data to be captured regarding each offender utilizing standardized forms or web based applications to be developed by the Community Corrections Subcommittee to include but not be limited to the following:
3.2.d.3.A. Offender full name and aliases (if applicable).
3.2.d.3.B. Offender date of birth.
3.2.d.3.C. Offender race.
3.2.d.3.D. Offender ethnicity.
3.2.d.3.E. Offender gender.
3.2.d.3.F. Offender home county and state at time of offense.
3.2.d.3.G. Highest grade completed by offender at time of offense.
3.2.d.3.H. Convicted offense(s) of offender.
3.2.d.3.I. Classification of offense(s) (misdemeanor or felony).
3.2.d.3.J. Sentencing county.
3.2.d.3.K. Sentencing court (magistrate or circuit).
3.2.d.3.L. Method of disposition.
3.2.d.3.M. Sentence.
3.2.d.3.N. Sentencing date.
3.2.d.3.O. Date the offender entered the community corrections program.
3.2.d.3.P. Date the offender failed the community corrections program (if applicable).
3.2.d.3.Q. Date the offender completed the community corrections program (if applicable).
3.2.d.3.R. Services received by the offender.
3.2.d.3.S. Certificates (achievement, completion, etc) obtained by offender.
3.2.d.3.T. Assessment scores received by the offender.
W. Va. Code R. § 149-4-4 Administrative Procedures
4.1. The purpose of this section is to establish the administrative procedures that a community corrections program must follow in order to be considered for approval and funding.
4.2. General Community Corrections Programs Approval. -- Community corrections programs applicants shall adhere to the following guidelines for both community corrections program approval and funding approval:
4.2.a. A community or communities seeking community corrections program approval from the Community Corrections Subcommittee must submit an official community corrections program proposal application and follow all special conditions and assurances in the proposal application. This proposal application must be submitted by those communities seeking funding as well as those communities not seeking funding.
4.2.b. Proposed community corrections programs shall meet the Community Corrections Programs Standards as established in §149-4-3 of this rule.
4.2.c. A county commission shall serve as an applicant for a community corrections program. In those incidences where the county commission is unable to serve as the applicant, the West Virginia Supreme Court of Appeals may serve as the applicant representing chief circuit judges and chief probation officers.
4.2.d. A community corrections program shall be developed by a local community criminal justice board, or a chief probation officer, with approval of the chief circuit judge.
4.2.e. The applicant must demonstrate how the local community and local criminal justice system are involved with the community corrections program development and implementation. Applicants are encouraged to submit letters of support from all individuals involved in the development and implementation process.
4.3. Approval of community corrections program with no request for state funds. -- Should a community corrections program applicant request community corrections program approval from the Community Corrections Subcommittee and not request state funds for the implementation of that community corrections program, the following guidelines shall be applicable:
4.3.a. Proposal applications may be submitted to the Community Corrections Subcommittee at anytime. These proposal applications will be reviewed and considered for approval by the Community Corrections Subcommittee on behalf of the Governor’s Committee on Crime, delinquency and Corrections at the next scheduled Community Corrections Subcommittee meeting.
4.3.b. Should a proposal application be approved by the Community Corrections Subcommittee, said approval will remain in effect for a period of three years.
4.3.c. Should a community corrections program be modified following an approval from the Community Corrections Subcommittee yet prior to the end of the established 3-year period, new approval shall be requested from the Community Corrections Subcommittee.
4.3.d. Approved applicants shall submit quarterly progress reports approved by the Community Corrections Subcommittee.
4.3.e. Approved applicants shall submit an annual progress report approved by the Community Corrections Subcommittee.
4.3.f. Approved applicants shall collect and submit quarterly, data pursuant to the requisites of §149-4-3.2.d.3. of this rule.
4.4. Approval of community corrections program with state funding. -- Should a community corrections program applicant request community corrections program approval from the Community Corrections Subcommittee and request state funds for the implementation of that community corrections program, the following guidelines shall be applicable:
4.4.a. The Community Corrections Subcommittee will distribute proposal application information during the months of January - March of each year. The distribution list will include the following:
4.4.a.1. County Commissions;
4.4.a.2. Circuit Judges;
4.4.a.3. Probation Offices;
4.4.a.4. Class I and II Municipalities; and
4.4.a.5. Prosecuting Attorneys.
4.4.b. Proposal application submission deadline will be a set date during the months of April through May. This date will be established each year by the Community Corrections Subcommittee.
4.4.c. Proposal applications approved for funding will begin community corrections program implementation on July 1 and conclude community corrections program implementation June 30 of the following year.
4.4.d. Funding awards will be for a one-year period on a competitive basis.
4.4.e. Funding decisions will be made based on the criteria in the proposal application and applicants may be required to orally present their application to the Community Corrections Subcommittee.
4.4.f. There shall be a minimum 10% local cash match requirement on each funded community corrections program.
4.4.g. State funds will be disbursed to the applicants through a monthly reimbursement of expenses.
4.4.h. During the administration of a proposal application award, applicants shall submit all administrative paperwork approved by the Community Corrections Subcommittee. The paperwork may include, but is not limited to the following:
4.4.h.1. Award contract.
4.4.h.2. Award resolution.
4.4.h.3. Monthly progress reports.
4.4.h.4. Monthly financial reports with supporting documentation.
4.4.h.5. Monthly request for reimbursement documents.
4.4.h.6. Annual progress report.
4.4.h.7. Monthly data pursuant to the requisites of §149-4-3.2.d.3. of this rule.
149CSR4
149CSR4
Series 07 Protocol for Law Enforcement Response to Stalking
W. Va. Code R. § 149-7-1 General
1.1. Scope. -- This legislative rule establishes law enforcement response to stalking by providing guidelines and establishing standards for responding to stalking incidents. Particular attention is given to protecting victims of stalking through initial response, on-scene assistance, arrest, follow-up, and reporting, including enforcement of personal safety orders. If the stalking is determined to be domestic in nature, refer to 149CSR3. Law enforcement response is dictated by the protocol as outlined in 149CSR3. It is also the means by which law enforcement agencies can minimize departmental liability and provide training.
1.2. Authority. -- W. Va. Code §61-2-9A.
1.3. Filing Date. -- May 3, 2013.
1.4. Effective Date. -- July 1, 2013.
W. Va. Code R. § 149-7-2 Purposes
2.1. The principal purpose of this rule is to establish guidelines and procedures in compliance with state and federal law to be followed by all West Virginia law enforcement officers as defined herein and other personnel involved in police response to stalking calls.
2.2. Other purposes and goals of this rule are:
2.2.a. To reduce the incidence and severity of stalking by establishing arrest and prosecution, as the means of police response to stalking;
2.2.b. To afford maximum protection and support to victims of stalking through a coordinated response of law enforcement and victim assistance;
2.2.c. To ensure that law enforcement services are as available in stalking cases as they are in other criminal cases;
2.2.d. To promote law enforcement officer safety by ensuring that the law enforcement officer is as fully prepared as possible to respond to stalking calls; and,
2.2.e. To help reduce police resources consumed in responding to stalking by reducing the number of police interventions required.
W. Va. Code R. § 149-7-3 Definitions
3.1. “Credible corroborative evidence” means evidence that is worthy of belief and corresponds with the allegations of stalking and one or more elements indicating fear for his or her safety or suffering significant emotional distress from the offense and may include, but is not limited to, the condition of the victim, the accused, and the scene.
3.2. “County” means any one of the fifty-five major political subdivisions of the state.
3.3. “Dispatcher” means a telecommunicator who receives calls from individuals who need assistance from firefighters, law enforcement officers, and emergency medical services. Once information is obtained from the caller, telecommunicators activate the services necessary to respond to the nature of the call for help and maintain close contact with field units to monitor response and needed support requirements.
3.4. “Bodily injury” means substantial physical pain, illness, or any impairment of physical condition;
3.5. “Harasses” means willful conduct directed at a specific person or persons which would cause a reasonable person mental injury or emotional distress.
3.6. “Immediate family” means a spouse, parent, stepparent, mother-in-law, father-in-law, stepchild, sibling, or any person who regularly resided in the household or within the prior six months regularly resided in the household;
3.7. “Repeatedly” means on two or more occasions
3.8. “Law enforcement agency” means any duly authorized state, county, or municipal organization employing one or more persons whose responsibility is the enforcement of laws of the state or any county or municipality of this state.
3.9. Law enforcement officer” means any duly authorized member of a law enforcement agency who is authorized to maintain public peace and order, prevent and detect crime, make arrests and enforce the laws of the state or any county or municipality of the state, other than parking ordinances, including persons employed as campus police officers at state institutions of higher education and those persons employed as rangers by the Hatfield-McCoy regional recreational authority. The term “law-enforcement officer” does not apply to the chief executive of any West Virginia law-enforcement agency or any watchman or special conservation officer.
3.10. “Law enforcement official” means the duly appointed chief administrator of a designated law-enforcement agency or a duly authorized designee.
3.11. “Municipality” means any incorporated village, town or city whose boundaries lie within the geographic boundaries of the state.
3.12. “Personal Safety Order” under West Virginia Code 53-8-1, et seq, Personal Safety Order Act, means an injunction or other order, issued under sexual assault, attempted sexual assault, stalking, or similar laws. A personal safety order may include any or all of the following relief: order the respondent to refrain from committing or threatening to commit an act specified in subsection (a), of West Virginia Code 53-8-4 against the petitioner; order the respondent to refrain from contacting, attempting to contact or harassing the petitioner directly, indirectly, or through third parties regardless of whether those third parties know of the order; order the respondent to refrain from entering the residence of the petitioner; order the respondent to remain away from the place of employment, school or residence of the petitioner; order the respondent not to visit, assault, molest, or otherwise interfere with the petitioner and, if the petitioner is a child, the petitioner’s siblings and minors residing in the household of the petitioner; order either party to pay filing fees and costs. A personal safety order must be issued by a court; agency or other entity authorized by law to issue or modify a personal safety order. Personal Safety Orders include out-of-state orders and are entitled to full faith and credit.
3.13. “Protective Order” under West Virginia Code 48-28-2 Uniform Interstate Enforcement of Domestic Violence Protection Orders Act, means an injunction or other order, issued under domestic violence, family violence, stalking, or similar domestic relations laws. A protective order is issued to prevent an individual from engaging in violent or threatening acts against, harassment of, contact or communication with, or physical proximity to a protected individual. A protective order must be issued by a court; agency or other entity authorized by law to issue or modify a protective order. Protective Orders include out-of-state orders and are entitled to full faith and credit.
W. Va. Code R. § 149-7-4 Personal Safety Orders
4.1. A personal safety order is an injunction or other order, issued under sexual assault, attempted sexual assault, stalking, or similar laws. A protective personal safety order is issued to prevent an individual from engaging in violent or threatening acts against, harassment of, contact or communication with, or physical proximity to a protected individual. A personal safety order may include any or all of the following relief: order the respondent to refrain from committing or threatening to commit an act specified in subsection (a) of West Virginia Code 53-8-4 against the petitioner; order the respondent to refrain from contacting, attempting to contact or harassing the petitioner directly, indirectly, or through third parties regardless of whether those third parties know of the order; order the respondent to refrain from entering the residence of the petitioner; order the respondent to remain away from the place of employment, school or residence of the petitioner; order the respondent not to visit, assault, molest, or otherwise interfere with the petitioner and, if the petitioner is a child, the petitioner’s siblings and minors residing in the household of the petitioner; order either party to pay filing fees and costs. A personal safety order must be issued by a court; agency or other entity authorized by law to issue or modify a personal safety order.
4.1.a. Stalking offenses occurring in the context of intimate partner or other domestic situation may be covered by Domestic Violence Protective Orders and Legislative Rule 149 CSR 3 and therein governed as other Domestic Violence Offenses.
4.1.b. Protective orders include, but are not limited to, Emergency Protective Orders, Temporary Emergency Protective Orders, Domestic Violence Protective Orders, Temporary or Final Protective Orders issued as a part of Temporary or Final Divorce Orders, or any other terms or orders that have a similar purpose.
4.1.b.1. Domestic Violence protective orders are considered criminal in nature. Law enforcement agencies and officers in the state of West Virginia are responsible for the service of all orders and petitions for protection. Service of protective and personal safety orders shall be a priority. The law enforcement officer shall immediately, but not longer than 72 hours, make every reasonable effort to locate respondent for service of protective and personal safety orders. Service shall be performed on any day including Sundays and holidays. No law enforcement officer shall refuse to serve pleadings or orders in personal safety or protective order actions.
4.1.b.2. When the officer serves the order upon the respondent, the officer shall file the return of service within 24 hours to the circuit clerk’s office.
4.1.c. When serving the personal safety order, the officer shall inform the respondent of the mandatory relief of the order.
4.1.d. If the court prohibits the respondent from possessing firearms as defined in West Virginia Code 53-8-7, then the law enforcement officer should:
4.1.d.1. Inquire about whether or not a weapon was used or threatened to be used in the commission of the offense predicating the petitioning for the personal safety order;
4.1.d.2. Determine if the respondent has violated any prior order as specified in this protocol;
4.1.d.3. Determine if the respondent has been convicted of an offense involving the use of a firearm;
4.1.e. The serving officer should request that the respondent surrender all of his or her firearms and ammunition to the officer or transfer to a qualified third party (a party who is not prohibited from possessing firearms under state and federal law).
4.1.f. The serving officer should encourage the respondent to make a decision about his or her firearms while the officer is present to verify the surrender or transfer; and
4.1.g. If the respondent refuses to surrender or transfer his or her firearms and ammunition after the serving officer has provided a reasonable opportunity to do so, then the serving officer shall arrest the respondent for violation of the personal safety order.
4.2. A personal safety order remains in effect for the period of time stated in the order unless the personal safety order is dismissed or extended by the court.
4.3. A personal safety order issued in any county in West Virginia is in effect in all counties in West Virginia.
4.4. A personal safety order issued by a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands or any territory or insular possession subject to the jurisdiction of the United States, or an Indian tribe or band that has jurisdiction to issue protective orders shall be accorded full faith and credit and enforced as if it were an order of this state, whether or not the relief ordered is available in this state, if there is probable cause to believe that it is a valid foreign protection order.
4.4.a. There is probable cause to believe that a personal safety order is valid if it identifies both the protected individual and the respondent and the order appears, on its face, to be authentic and currently in effect.
4.4.b. In circumstances whereby a written personal safety order is not presented, the law enforcement officer may consider other credible information in determining whether there is probable cause to believe that the order exists and is currently in effect.
4.4.c. Presentation of a certified copy of a personal safety order is not required for enforcement.
4.4.d. For the purposes of this section, the personal safety order may be inscribed on any tangible medium or may have been stored in an electronic or other medium if it is retrievable in perceivable form.
4.4.e. A personal safety order, temporary or final, from another jurisdiction may be enforced even if the order is not registered, filed or entered into the state law enforcement information system.
4.5. If a law enforcement officer determines that an otherwise valid personal safety order cannot be enforced because the respondent has not been notified of or served with the order, the officer shall inform the respondent of the content of the order and make a reasonable effort to serve any available copy of the order upon the respondent. The officer shall allow the respondent a reasonable opportunity to comply with the order. Once the officer has notified or served the respondent, the officer shall enforce the order.
W. Va. Code R. § 149-7-5 Dispatcher Responsibilities
5.1. Dispatchers under the supervision of a law enforcement agency and communications and emergency operations centers shall dispatch stalking calls in the same manner as any other call for police assistance, in accordance with the priority criteria prescribed by generally applicable department procedures. Whenever possible, the dispatcher should assign a back-up unit.
5.2. The dispatcher receiving a stalking call should attempt to elicit from the caller, and should communicate to the responding law enforcement officer, as much of the following information, in the following order of importance, as time and exigencies of the reported incident allow:
5.2.a. The nature of the incident;
5.2.b. The address of the incident, including the apartment number or the name of the business, as appropriate;
5.2.c. A telephone number where the caller can be called back;
5.2.d. Whether weapons are involved or present and if so, where they are located;
5.2.e. Whether or not there are any injuries and whether or not an ambulance is needed;
5.2.f. A description of the accused and whether or not the accused is present and, if not, the most likely location, direction of flight, and mode of travel of the accused;
5.2.g. Whether other individuals, including children, are at the scene;
5.2.h. Whether any party is using or is under the influence of alcohol or drugs;
5.2.i. Whether a personal safety order or a domestic violence protective order is in effect and if it includes consent to enter the residence to enforce the protective order;
5.2.j. If the caller is the victim and in the residence, would they consent to entry;
5.2.k. Whether a criminal warrant is outstanding on the accused; and,
5.2.l. Whether the accused has been released on bail on a charge of a crime against a family or household member, including a family or household member who is a child, with any conditions on bail regarding contact with the victim or complainant.
5.3. If the caller is the victim, or if the caller is a witness to a stalking incident in progress, the dispatcher should keep the caller on the telephone and should relay ongoing information provided by the caller to the responding law enforcement officer. The dispatcher should tell the caller that help is on the way and when the police may arrive.
5.4. If the dispatcher has ready access to police department records, all information relevant to the situation shall be relayed to the officer. The dispatcher shall access the statewide domestic violence protective order database, and National Crime Information Center (NCIC), and other criminal and applicable information databases to determine whether the parties have been previously involved in similar incidents or whether there is a protective order or a personal safety order involving the parties in effect, and relay that information to the responding law enforcement officer.
5.5. If the dispatcher has reason to believe that the accused is on bail and if the dispatcher has ready access to magistrate court records that show whether there are conditions of bail, the dispatcher should consult the records and radio any relevant information to the responding law enforcement officer; including the existence of a protective order or a personal safety order prohibiting the possession of firearms.
W. Va. Code R. § 149-7-6 Initial Law Enforcement Officer Response
6.1. Approaching the scene.
6.1.a. The law enforcement officer should obtain all available information from the dispatcher before arriving at the scene and should notify the dispatcher upon arrival.
6.1.b. Unless the circumstances of a particular incident require different measures, the law enforcement officer should follow the approach procedures set out in the remainder of this section. The law enforcement officer should:
6.1.b.1. Approach the scene inconspicuously. The law enforcement officer should not use sirens or lights in the immediate area of the scene of the incident;
6.1.b.2. Park away from the immediate scene of the incident;
6.1.b.3. Keep a safe exit route in mind;
6.1.b.4. Be alert for the employment of weapons from doors, windows, or nearby vehicles;
6.1.b.5. Be alert for persons moving away from the immediate scene of the incident; and,
6.1.b.6. Employ other standard precautionary measures for approaching high risk incident scenes.
6.2. Initial contact.
6.2.a. The responding law enforcement officer should identify himself or herself, explain the law enforcement presence, and request entry into the residence or business. The law enforcement officer shall ask to see the person who is the subject of the call. The law enforcement officer shall not reveal the caller’s name.
6.2.b. Complete a report on all incidents where a reporting party or victim alleges another person violated stalking law
6.2.c. In some exigent circumstances, forced entry is necessary and appropriate. Exigent Circumstances include but are not limited to:
6.2.c.1. The residence area shows signs of a fight or scuffle;
6.2.c.2. When a person from inside the residence calls for assistance or is yelling;
6.2.c.3. When the law enforcement officer has reason to believe that the person is wounded, injured, or is otherwise in need of assistance;
6.2.c.4. When the accused is suspected of concealing the victim;
6.2.c.5. When the call came from the residence and the victim is identified as the caller and entry is denied by others present on the scene; or
6.2.c.6. When the officer has articulable suspicion that absent immediate entry serious bodily injury or death may result.
6.3. Establishing control of scene.
6.3.a. Once at the scene of the incident, the responding law enforcement officer should establish control by:
6.3.a.1. Identifying and securing potential weapons;
6.3.a.2. Separating the victim and the accused when circumstances are appropriate;
6.3.a.3. Inquiring about injuries (including inquiry about possible internal injuries), administering first aid, and notifying emergency medical services as necessary;
6.3.a.4. Identifying all occupants and witnesses on the premises; and
6.3.a.5. Separating occupants and witnesses from the victim and accused and keeping them out of hearing range (to avoid compromising their witness status).
6.4. On-scene investigation.
6.4.a. The law enforcement officer shall conduct an investigation using the same procedures that the law enforcement officer would use in any other on-scene criminal investigation. While conducting the investigation the law enforcement officer shall attempt to establish the existence of credible corroborative evidence. The law enforcement officer shall make specific note of and document all statements made by the victim, accused and all witnesses, particularly those statements that may be admissible as evidence as exceptions to the hearsay rule such as excited utterances, present sense impression and statements made for medical treatment. The law enforcement officer shall also determine if such statements were made to the dispatcher and take appropriate measures to secure and preserve such evidence.
6.4.b. The law enforcement officer should ensure the victim’s safety and privacy by interviewing the victim in an area apart from the accused, witnesses, and bystanders if possible.
6.4.c. In questioning the victim, the law enforcement officer should use supportive interview techniques. The law enforcement officer should ask the victim about previous stalking or similar incidents. Determine the frequency and severity of the stalking or similar incidents. Determine if they are domestic in nature. The law enforcement officer should not tell the victim what action the law enforcement officer intends to take until all available information has been collected.
6.4.d. The law enforcement officer should interview and record, if possible, the victim and any witnesses (including all child witnesses) as fully and as soon as circumstances allow, taking down names, addresses, and other relevant information. When interviewing the victim and any witnesses (including all child witnesses) law enforcement officer should determine whether the victim and any witnesses (including all child witnesses) allege facts that constitute all of the elements of stalking. If so, the law enforcement officer should inquire whether the victim and any witnesses are willing to sign a statement containing those facts. The law enforcement officer should also inquire about past abuse and past behavior or other crimes to aid the law enforcement officer in evaluating the dangerousness of the accused. The law enforcement officer should proceed with the investigation even in the absence of a statement from both a victim and any witnesses (including child witnesses).
6.4.e. The responding law enforcement officer should interview and record, if possible, the accused as fully as circumstances allow inquiring about the nature of the incident. The law enforcement officer should be alert to possible incriminating statements.
6.4.f. In cases where the accused or victim does not speak English, law enforcement officer should use a neutral interpreter when possible. Officers should use caution when using family and friends and especially children, to provide interpreter services.
6.4.g. In the collection of evidence and taking of statements, the law enforcement officer shall protect the constitutional rights of the accused in accordance with current laws and statutes of the state of West Virginia and of the United States.
6.4.h. Children should be interviewed in a manner appropriate to the child’s age. If the law enforcement officer has reasonable cause to suspect that a child is neglected or abused or observes the child being subjected to conditions that are likely to result in abuse or neglect, the law enforcement officer shall immediately report the circumstances to Child Protective Services (CPS).
6.4.i. The law enforcement officer should solicit information as to the possible whereabouts of the accused (place of employment, relatives, friends, etc.). The law enforcement officer should make reasonable efforts to locate and interview the accused as to any statements or evidence they may wish to provide prior to arrest or obtaining a warrant.
6.4.j. The law enforcement officer shall collect and preserve all physical evidence reasonably necessary to support prosecution, including contact made through electronic devices, logs kept by the accused, witness accounts, officer observation, etc. All physical evidence shall be collected, noted in reports, and vouchered as in other criminal investigations.
6.4.j.1. Electronic Evidence Collection
6.4.j.1.A. Digital Forensics is the recovery of evidence from various electronic and magnetic media such as computer hard drives, compact disks, digital cameras, memory cards, cellular telephones and mobile devices to retrieve information of probative value stored or transmitted in digital form. Precautions must be taken in the collection, preservation, and examination of electronic evidence. Handling the evidence at the crime scene normally consists of the following steps:
6.4.j.1.A.1. Recognition and Identification
6.4.j.1.A.2. Collection and Preservation
6.4.j.1.A.3 Packaging, Transportation, Storage and Submission for Analysis
6.4.j.2. Recognition and Identification of Electronic Evidence
6.4.j.2.A. Computer systems typically consist of data storage devices, a display, keyboard, and mouse. These can be in the form of a laptop, desktop, tablet, or smart phone. Evidence is found in files that are stored on hard drives, storage devices and removable media.
6.4.j.2.B. Removable media is any device that can be connected to a computer for storage but is not part of the computer itself. This includes memory cards, flash drives, external hard drives, recording devices, and access control devices (dongles, smart cards, and biometric scanners). Memory cards can be as small as a human fingernail and flash drives can easily be disguised as other objects such as pens, pocket knives, and lighters. These devices can store the same files found on computer systems.
6.4.j.2.C. Digital cameras are recording devices for images and videos. These devices can have internal storage and contain memory cards. Electronic evidence stored within the camera can only be obtained if the camera is powered on, and therefore chargers should be collected along with these devices. Potential evidence includes images, videos, and date and time stamps. If memory cards are present, any files that can be recovered from removable media can be present.
6.4.j.2.D. Answering machines are electronic devices that store voice messages from callers. Some models use a magnetic tape while others use an electronic digital recording system. Since batteries have a limited life, data could be lost if they fail. Appropriate personnel should be informed that a device powered by batteries is in need of immediate attention. Caller identification information, deleted messages, and dates and times of recordings are all potential evidence that can be collected here.
6.4.j.2.E. Telephones can include but are not limited to: landlines, cable, VOIP, satellite, and cellular telephones. Call history can be obtained from telephones including date and timestamps and caller identification. Cellular telephones can store small amounts of data such as text messages and calls. Cellular telephones can be more advanced like smart phones and can store the same information as a computer. Data may be lost if batteries die, so finding and securing power cables is essential.
6.4.j.2.F. Mobile devices such as personal digital assistants (PDAs), portable media players or electronic organizers have the same capabilities of a computer and smart phone. These may have special cradles or cables to connect to a computer which should be collected with the device. Limited battery life in these devices can cause data loss if they fail, so finding and securing power cables is essential.
6.4.j.2.G. Other types of electronic evidence include pagers, digital watches, floppy disks, disks, business video surveillance, CD-ROMs, and GPS devices. Pagers can hold address information and contact history. Digital watches can store email information and address books. GPS (global positioning systems) can hold points of interest, travel logs, and address books.
6.4.j.3. Collection and Preservation of Electronic Evidence
6.4.j.3.A. The search for and collection of evidence at an electronic crime scene may require a search warrant or consent from the owner. Recognize that other types of evidence such as trace, biological, or latent prints may exist. Follow your agency’s protocol regarding evidence collection. Destructive techniques (e.g., use of fingerprint processing chemicals) should be postponed until after electronic evidence recovery is done.
6.4.j.3.B. Items relevant to subsequent examination of electronic evidence may exist in other forms (e.g., written passwords and other handwritten notes, blank pads of paper with indented writing, hardware and software manuals, calendars, literature, text or graphical computer printouts, and photographs) and should be secured and preserved for future analysis. These items frequently are in close proximity to the computer or related hardware items.
6.4.j.3.C. Computer evidence, like all other evidence, must be handled carefully and in a manner that preserves its evidentiary value. This relates not just to the physical integrity of an item or device, but also to the electronic data it contains. Certain types of computer evidence, therefore, require special collections, packaging, and transportation. Consideration should be given to protect data that may be susceptible to damage or alteration from electromagnetic fields such as those generated by static electricity, magnets, radio transmitters, and other devices.
6.4.j.3.D. Multiple computers may indicate a computer network. Likewise, computers located at businesses are often networked. In these situations, specialized knowledge about the system is required to effectively recover evidence and reduce your potential for civil liability. When a computer network is encountered, contact the forensic computer expert in your department or outside consultant identified by your department for assistance.
6.4.j.3.E. Collection of Computer Systems
6.4.j.3.E.1. Record in notes all actions taken and any observable changes in the display, computer, printer, or other peripherals that result from actions taken.
6.4.j.3.E.2. Observe the display and determine if it is on, off, or in sleep mode. Then decide which of the following situations applies and follow the steps for that situation.
Situation 1: Display is on and work product or desktop is visible.
Action: Photograph screen and record information displayed.
Proceed to Situation 3 Situation 2: Display is on and screen is blank (sleep mode) or screen saver (picture) is visible Action: Move the mouse slightly (without pushing any buttons). The screen should change and show work product or request a password.
If the mouse movement does not cause a change in the screen, DO NOT perform any other keystrokes or mouse operations.
Photograph the screen and record the information displayed.
Proceed to situation 3.
Situation 3: Display is off.
Make a note of the “off” status.
Action: Turn the monitor on, then determine if the monitor status is as described in either situation 1 or 2 above and follow those steps.
6.4.j.3.E.3. Regardless of the power state of the computer (on, off, or sleep mode), FIRST remove the power source cable from the computer THEN remove from the wall outlet. If dealing with a laptop, in addition to removing the power cord, remove the battery pack.
6.4.j.3.E.4. Photograph and label the connections of the computer and the corresponding cables.
6.4.j.3.E.5. Record or log evidence according to your departmental procedures.
6.4.6.3.F. Collection of Other Electronic Devices
6.4.6.3.F.1. Electronic devices, such as the ones in the list below, may contain potential evidence associated with criminal activity. Unless an exigent circumstance exists, the device should not be operated. Should it be necessary to access information from the device, all actions associated with the manipulation of the device should be documented to preserve the integrity of the information. Special attention should be given to the following devices: 6.4.6.3.F.1.(a). Wireless mobile devices should be removed from the wireless networks. Ways to do this can include: removing the battery or placing the cellular telephone in a Faraday bag/container or wrap the device in three layers of aluminum foil and place the device in an empty metal paint can. Data from cellular telephones can be transferred onto computer systems so these systems should be collected. A preservation order should be sent to cell phone providers to preserve call logs, subscriber information and text messages. A subpoena must be served to obtain these records and a search warrant is necessary for any content. 6.4.6.3.F.1.(b) GPS devices should be turned off to prevent potential evidence from being overwritten.
6.4.j.4. Packaging, Transportation, Storage, and Submission
6.4.j.4.A. Actions taken should not add, modify, or destroy data stored on an electronic device, computer or other media. Computers are fragile electronic instruments that are sensitive to temperature, humidity, physical shock, static electricity, and magnetic sources. Therefore, special precautions should be taken when packaging, transporting, and storing electronic evidence.
6.4.j.4.A.1. Packaging procedure: 6.4.j.4.A.1.(a). Ensure that all collected electronic evidence is properly documented, labeled, and inventoried before and after packaging. 6.4.j.4.A.1.(b). Pay special attention to latent or trace evidence and take actions to preserve it. 6.4.j.4.A.1.(c). Pack magnetic media in antistatic packaging (paper or antistatic plastic bags). Avoid using materials that can produce static electricity, such as standard plastic bags. 6.4.j.4.A.1.(d). Avoid folding, bending, or scratching computer media such as diskettes, CD–ROMs, and tapes or other types of external storage devices.
6.4.j.4.A.2. Transportation procedure: 6.4.j.4.A.2.(a). Keep electronic evidence away from magnetic sources. Radio transmitters, speaker magnets, and heated seats are examples of items that can damage electronic evidence. 6.4.j.4.A.2.(b). Avoid storing electronic evidence in vehicles for prolonged periods of time. Conditions of excessive heat, cold, or humidity can damage electronic evidence. 6.4.j.4.A.2.(c). Ensure that computers and other components that are not packaged in containers are secured in the vehicle to avoid shock and excessive vibrations.
6.4.j.4.A.3. Storage procedure: 6.4.j.4.A.3.(a). Store evidence in a secure area away from temperature and humidity extremes. Protect it from magnetic sources, moisture, dust, and other harmful particles or contaminants. 6.4.j.4.A.3.(b). Potential evidence such as dates, times, and systems configurations may be lost as a result of prolonged storage. Since batteries have a limited life, data could be lost if they fail. Therefore, appropriate personnel should be informed that a device powered by batteries is in need of immediate attention.
6.4.j.4.A.4. Submission procedure: 6.4.j.4.A.4.(a). Complete a Forensic Laboratory Case Submission Form, WVSP-53, completely. 6.4.j.4.A.4.(b). Remove all internal hard drives from desktop computers or towers. The hard drive(s) need to be removed from the computer before submission. Complete laptops will be accepted, however, since special techniques may be required to remove the hard drive. If you should need guidance in removing hard drives from a desktop or laptop computer, contact a digital forensics analyst for more information. 6.4.j.4.A.4.(c). Mobile phones should be turned off and the battery removed. If the phone is locked, include an unlock code if possible. 6.4.j.4.A.4.(d). List, on a separate sheet of paper, a brief description of the case, evidence sought, and a list of keyword search terms relative to the case if appropriate. Names, aliases, screen names, e-mail addresses, and any other pertinent information should be included. 6.4.j.4.A.4.(e). The West Virginia State Police Digital Forensic Unit (WVSP DFU) is the entity available to all law enforcement agencies in the state for technical assistance and evidence processing:
Morgantown Laboratory Morgantown, WV 26505 Huntington Laboratory Huntington, West Virginia 25701
6.4.k. The law enforcement officer shall also document and report the victim’s state of mind to show a level of fear for their safety or significant emotional distress. Items to document include but are not limited to whether the victim:
6.4.k.1. Moved to a new location
6.4.k.2. Obtained a new phone number
6.4.k.3. Put a tap on the phone
6.4.k.4. Told friends, coworkers, security, etc. about the stalking
6.4.k.5. Changed work schedules or route to work
6.4.k.6. Stopped visiting places previously frequented
6.4.k.7. Taken self-defense classes or purchased self-protection items, i.e. pepper spray
6.4.k.8. Installed an alarm system
6.4.l. The law enforcement officer should encourage the victim to seek medical attention for injuries that do not require emergency treatment at the scene. The law enforcement officer should inquire about injuries of the victim that are concealed by clothing or otherwise not readily apparent. The law enforcement officer should advise the victim to have photographs taken if injuries appear later.
6.4.m. The law enforcement officer may conduct surveillance on the accused.
6.5. Advising the victim.
6.5.a. The law enforcement officer should advise the victim about:
6.5.a.1. Personal safety orders or protective orders of protection
6.5.a.2. Contact information for local victim advocacy or other services
6.5.a.3. The Law Enforcement Officer’s pertinent information
6.5.a.4. How to document incidents surrounding the alleged stalker including but not limited to:
6.5.a.4.A. Keeping a diary with all contact attempts, dates, times, and details of the incident and witnesses to the incident.
6.5.a.4.B. Contacting the service provider to have them document any contact.
6.5.a.4.C. Securing and preserving emails or text messages or other contact made through electronic devices.
6.5.b. The law enforcement officer should advise the victim to:
6.5.b.1. Stop all contact with the alleged stalker.
6.5.b.2. Prepare for their safety by:
6.5.b.2.A. Having emergency numbers ready.
6.5.b.2.B. Keeping a reserve of necessities ready such as: a suitcase, money, medication, clothes, and children’s items.
6.5.b.3. Report EACH incident of stalking to your local law enforcement agency.
6.5.b.4. Not let third parties other than law enforcement intervene with the alleged stalker.
6.6. Enforcing any orders or bail conditions.
6.6.a. To determine the existence of a personal safety order, ask the victim whether there is a valid personal safety order in effect. If so, the law enforcement officer should ask the victim if he or she can produce a copy of the personal safety order. If the victim cannot produce a copy of the personal safety order then the officer should attempt to verify the existence of an order by accessing, if applicable, the statewide protective order database, NCIC, and identifying the issuing county and court. The law enforcement officer shall enforce all orders. Where the respondent has been served with the personal safety order or has actual notice of the personal safety order, then the law enforcement officer shall follow the arrest authorization provisions as set forth in this rule.
6.6.b. If a law enforcement officer determines that an otherwise valid personal safety order cannot be enforced because the respondent has not been notified of or served with the order, the officer shall inform the respondent of the content of the order and make a reasonable effort to serve any available copy of the order upon the respondent. The officer shall allow the respondent a reasonable opportunity to comply with the order, such as vacating the premises, surrendering firearms, etc. Once the officer has notified or served the respondent, and the respondent fails to comply with the order, the officer shall enforce the order.
6.6.c. If the officer makes verbal notification, the officer shall notify the respondent of the following minimum mandatory relief:
6.6.c.1. Order the respondent to refrain from abusing, harassing, stalking, threatening or otherwise intimidating the petitioner, or engaging in other conduct that would place the petitioner in reasonable fear of bodily injury.
6.6.c.2. Inform the respondent that the order is in full force and effect in every county of this state.
6.6.d. The law enforcement officer shall document the notification in writing to the circuit clerk’s office.
6.6.e. Verbal notification does not relieve the agency or officer from serving the order.
6.6.f. If the victim is aware of pending criminal charges against the accused and bail conditions, the law enforcement officer should verify such information by contacting the local law enforcement department specified by the victim or the issuing court to verify the conditions of release on bail and initiate the proper proceedings.
6.6.g. The law enforcement officer shall enforce all personal safety or similar type orders that have been issued by a circuit judge, family court judge or magistrate of this state, and from courts of another state, territory, or tribe.
6.6.h. Whether or not an arrest is made, the responding law enforcement officer should not leave the scene of the incident until the situation is under control and the likelihood of immediate violence has been eliminated. The law enforcement officer should stand by for a reasonable period of time to ascertain safety of surroundings and while victims or other persons desiring to leave gather necessities for short-term absences from residence, such as clothing, medication, and necessary documents.
6.6.i Notwithstanding the issue of violation of the state law, the crossing or causing the crossing of a state line or territory or tribal boundary to violate a valid personal safety order is a violation of state law and should also be referred to federal authorities.
6.7. Missing Persons Investigation; Stalking
6.7.a. A law enforcement agency, under WV Code § 48-27-601, shall initiate a missing persons investigation if the agency:
6.7.a.1. Has possession of a valid personal safety order, or has notice of the existence of a personal safety order which is in effect, or has been expired for a period of less than thirty (30) days, and receives a report that a person protected by the order has been reported missing; or,
6.7.a.2. Receives information that at the time of disappearance the missing person was subjected to stalking,
6.7.b. An agency or department shall not have a policy delaying the beginning of an investigation of a missing person, which meets the criteria outlined in this subsection.
6.7.c. The investigating officer cannot release the whereabouts of the alleged missing person, if found, without expressed consent of that person.
W. Va. Code R. § 149-7-7 The Arrest Decision
7.1. In most circumstances, the responding law enforcement officer shall arrest the accused whenever arrest is authorized. In addition to any other report required, law enforcement officer who does not make an arrest after investigating a complaint of stalking shall submit a written report setting forth the grounds for not arresting.
7.2. Arrest is authorized in the following circumstances:
7.2.a. When the law enforcement officer has probable cause to believe that the accused has committed a felony;
7.2.b. When the law enforcement officer observes the commission of a felony or a misdemeanor;
7.2.c. When the law enforcement officer observes the violation of a valid personal safety order, including the presence of the accused at a location prohibited by the personal safety order; the officer shall arrest the accused provided the accused was served with the order or had actual notice of the order and its contents;
7.2.d. When the law enforcement officer observes any violation of a condition of bail, probation or parole, including the presence of the accused at the residence of the victim;
7.2.e. When the accused is alleged to have committed stalking or the violation of a valid personal safety order; law enforcement officer has authority to arrest the accused when:
7.2.e.1. The law enforcement officer has observed credible corroborative evidence that the offense has occurred; or,
7.2.e.2. The law enforcement officer has received, from the victim or a witness, a verbal or written allegation of facts constituting a violation of a valid personal safety order; or,
7.2.e.3. A misdemeanor or felony not included among those specified in this rule has been committed and the law enforcement officer or another person obtains or has previously obtained an arrest warrant; or,
7.2.e.4. A capias has been issued, or when a circuit judge has signed an attachment order.
7.2.e.5. Notwithstanding the issue of violation of the state law, the crossing or causing the crossing of a state line or territory or tribal boundary to commit stalking is a violation of federal law and should also be referred to federal authorities.
7.3. The law enforcement officers shall not consider the following factors in making the arrest decision:
7.3.a. The marital status of the parties;
7.3.b. The ownership or tenancy rights of either party;
7.3.c. Verbal assurances that the stalking will stop;
7.3.d. A claim by the accused that the victim provoked or perpetuated the violence;
7.3.e. Speculation that the victim or witnesses will not follow through or cooperate with criminal prosecution (whether based on prior incidents involving the same victim, the victim's hesitancy about pursuing prosecution, or any other factor);
7.3.f. The disposition of any previous police calls involving the same victim or accused;
7.3.g. Speculation that the arrest may not lead to a conviction;
7.3.h. The existence or nonexistence of a current personal safety order (except insofar as the violation of the order requires arrest);
7.3.i. Concern about reprisals against the victim;
7.3.j. Adverse financial consequences that might result from the arrest;
7.3.k. That the incident occurred in a private place;
7.3.l. The racial, cultural, social, political, or professional position or sexual orientation of either the victim or the accused; or,
7.3.m. The criminal history of the victim
7.4. It is the law enforcement officer’s or prosecuting attorney’s responsibility to decide whether an arrest should be made unless the law enforcement officer is required to make an arrest for violation of a valid personal safety order or a violation of the terms and conditions of bail, probation or parole.
7.5. Firearms
7.5.a. The law enforcement officer shall seize all firearms, ammunition, and any other weapons that are alleged to have been involved or threatened to be used in the commission of stalking.
7.5.b. The law enforcement officer may secure a weapon that is in plain view of the officer, or is discovered pursuant to a consensual search, or is necessary for the protection of the officer or other persons.
7.5.c. The law enforcement officer shall seize all firearms and ammunition possessed in violation of a personal safety order prohibiting possession of a firearm.
W. Va. Code R. § 149-7-8 Effectuating the Arrest
8.1. Persons arrested pursuant to this rule, shall be taken before a magistrate within the county in which the offense charged is alleged to have been committed in a manner consistent with the provisions of Rule 1 of the Administrative Rules for the Magistrate Courts of West Virginia.
8.2. Because the risk is high in stalking cases that the accused will continue to seek contact with the victim, if a warrant is necessary, the law enforcement officer should obtain and execute the warrant as soon as practical.
8.3. When the accused is a minor (under 18 years of age), the provisions of this rule are fully applicable, except that the law enforcement officer should arrest and process the juvenile pursuant to W. Va. Code §49-5-1 et. seq.
W. Va. Code R. § 149-7-9 Procedure when Arrest is not Made
9.1. If an arrest is not made the law enforcement officer should:
9.1.a. Explain to the victim the reasons that an arrest is not being made;
9.1.b. Advise the victim of the applicability of criminal laws, procedures for filing a criminal complaint, the availability of a petition for a personal safety order, the procedures for filing a petition, and the remedies an order may contain;
9.1.c. Encourage the victim to contact the nearest available sexual assault or domestic violence program for information regarding services available to victims of stalking;
9.1.d. Inform the victim that the law enforcement officer will provide transportation for or facilitate transportation of the victim to a community-based service provider or the appropriate court; and,
9.1.e. Inform the victim they have the right to file a claim with the West Virginia Crime Victims Compensation Fund.
W. Va. Code R. § 149-7-10 Other On-Scene Assistance to Victims and Dependents
10.1. If an arrest is made or an arrest warrant obtained, the law enforcement officer should:
10.1.a. Advise the victim of what will happen next, including the probability that the accused will be in custody for only a short period of time; and
10.1.b. Obtain from the victim information to be included in the arrest report indicating any special conditions of bail that should be requested at the initial appearance before the magistrate (i.e., places where the accused should be specifically prohibited from appearing).
10.2. When the law enforcement officer has a reasonable suspicion that an animal is a victim of cruel or inhumane treatment, he or she shall report the suspicion to the county humane officer within twenty-four hours of the response to the alleged incident of stalking.
10.3. Elderly victims or incapacitated adult victims.
10.3.a. When a victim of stalking is elderly or incapacitated adult or appears to be incapacitated, the law enforcement officer should attempt to provide and secure appropriate care and assistance for the well-being of the elderly or incapacitated adult.
10.3.b. If there is no one available to assist the elderly or incapacitated adult, the law enforcement officer should make an emergency referral to Adult Protective Services. The law enforcement officer should remain at the scene until the Adult Protective Services worker arrives, or should transport the elderly or incapacitated adult to a medical facility, or other appropriate place where the elderly or incapacitated adult can wait for the worker.
10.3.c. In addition to providing the notification required by other provisions of this rule, the law enforcement officer should advise the elderly or incapacitated adult of the availability of protective services through Adult Protective Services.
W. Va. Code R. § 149-7-11 Upon Arrest
11.1. A person arrested for violation of a personal safety order shall be charged with all crimes allegedly committed as a result of the incident in which the violation occurred.
11.2. The accused shall be taken before a magistrate in the county in which the offense charged is alleged to have been committed in a manner consistent with the provisions of Rule 1 of the Administrative Rules for the Magistrate Courts of West Virginia for initial appearances in criminal cases.
11.3. The arresting law enforcement officer may inform the magistrate or court of any circumstances surrounding the arrest of the accused which would have an effect on conditions of bail, provided that the amount and conditions of bail are a judicial decision that rests solely with the magistrate or court.
W. Va. Code R. § 149-7-12 Reporting
12.1. A West Virginia Intelligence Exchange (WVIX) Report shall be developed for use and is to be completed by the law enforcement officer responding to any call covered by this rule.
12.2. Data collection.
12.2.a. All WVIX reports on either party should be kept together or cross-referenced so that repeat stalking incidents can be documented.
12.2.b. The report, or another document (such as an index card) or computer entry generated from the report, shall become a stalking tracking report.
12.2.c. To the extent possible, the stalking tracking report shall be accessible to dispatchers and the law enforcement officer.
149CSR7
149CSR7
Series 08 Protocol for Law Enforcement Response to Child Abuse and Neglect
W. Va. Code R. § 149-8-1 General
1.1. Scope. -- This legislative rule establishes law enforcement response to child abuse and neglect by providing guidelines and establishing uniform standards for responding to circumstances involving possible child abuse and neglect. It will also be used as a means by which law enforcement agencies can develop training curricula on responding to circumstances involving possible child abuse and neglect.
1.2. Authority. -- W. Va. Code §15-9-5.
1.3. Filing Date. -- April 11, 2025.
1.4. Effective Date. -- April 11, 2025.
1.5. Sunset Provision. – This rule shall terminate and have no further force or effect on August 1, 2030.
W. Va. Code R. § 149-8-2 Purposes
2.1. The principal purpose of this rule is to establish guidelines and procedures in compliance with state and federal law to be followed by all West Virginia law enforcement officers as defined herein and other personnel involved in police response to circumstances involving possible child abuse and neglect.
2.2. Other purposes and goals of this rule are:
2.2.a. To reduce the incidence and se of child abuse and neglect by establishing a framework for early detection and intervention and establishing uniform standards for the investigation of child abuse and neglect.
2.2.b. To afford maximum protection and support to victims of child abuse and neglect through a coordinated response of dispatch, law enforcement, Child Protective Services (CPS), Child Advocacy Centers (CAC), prosecution and other applicable agencies.
2.2.c. To promote best practices and ensure that law enforcement services are as available in circumstances of child abuse and neglect as they are in other criminal cases.
2.2.d. To promote the safety of all individuals involved in circumstances of child abuse and neglect.
2.2.e. To promote a safe and appropriate response to circumstances involving victims with special needs including but not limited to developmental, pervasive mental health, behavioral and/or physical disabilities, including autism. Such children would also include those defined in W.Va. Code §61-8F-2, regarding Special Protections For Disabled Children Act of 2022, to include “disabled” children and “noncommunicative” children.
W. Va. Code R. § 149-8-3 Definitions
3.1. “Abandonment” has the same meaning as defined in W. Va. Code §48-22-102.
3.2. “Abused child” has the same meaning as defined in W. Va. Code §49-1-201.
3.3. “Abusing parent” has the same meaning as defined in W. Va. Code §49-1-201.
3.4. “Centralized Intake hotline” is the number to be called to make a report of abuse or neglect with the Department of Human Services (DoHS) through the Bureau for Social Services. To make a report of abuse or neglect, call 1-800-352-6513 and follow the automated prompts. When calling the Centralized Intake hotline (1-800-352-6513), information needs to be provided when calling which includes: demographic information of the victim(s) and the household members; description of the suspected abuse or neglect; information about the presence of protective caregivers; information about the perpetrators’ access to the victim; description of general functioning; and, potential safety threats in the home/family to first responders such as domestic violence, weapons, vicious animals, dangerous people, etc.
3.5. “Child” has the same meaning as defined in W. Va. Code §61-8D-1.
3.6. “Child abuse and neglect” or “child abuse or neglect” have the same meaning as defined in W.Va. Code §49-1-201. Criminal violations can be found in Chapter 61 and civil violations found in Chapter 49.
3.7. “Child abuse and neglect services” has the same meaning as defined in W. Va. Code §49-1-201.
3.8. “Child Advocacy Center” or “CAC” has the same meaning as defined in W.V. Code §49-3-101.
3.9. “Child Protective Services” or “CPS”, has the same meaning as defined in W.Va. Code §49-2-802.
3.10. “County” has the same meaning as defined in W.Va. Code §30-29-1(3).
3.11. “Custodian” has the same meaning as defined in W.V. Code §61-8D-1(4). “Custodian” also has the same meaning as defined in W.Va. Code §49-1-209.
3.12. “Deadly weapon” has the same meaning as defined in W. Va. Code §61-7-2(5). For a full list, reference W.Va. Code §61-7-2(5).
3.13. “Department of Human Services” or “DoHS” has the same meaning as defined in W. Va. Code §49-1-105. DoHS is the successor agency to the Department of Health and Human Resources as on January 1, 2024, the Department of Health and Human Resources (DHHR) was officially reorganized into three separate departments with the DoHS, per W.Va. Code §9-1-2, providing access to critical health care, essential social services and benefits with a special emphasis on vulnerable populations.
3.14. “Dispatcher” or “Telecommunicator” means a person who receives calls from individuals who need assistance from firefighters, law enforcement officers, and emergency medical services. Once information is obtained from the caller, the person activates the services necessary to respond to the nature of the call for help and maintains close contact with field units to monitor response and needed support requirements.
3.15. “Emergency service personnel" has the same meaning as defined in W. Va. Code §61-2-10B(3).
3.16. “Family or household member” has the same meaning as defined in W. Va. Code §48-27-204).
3.17. “Domestic violence” or “abuse”, has the same meaning as defined in W.Va. Code §48-27-202, with the occurrence of one or more of the following acts between family or household members:
3.17.a. Attempting to cause or intentionally, knowingly, or recklessly causing physical harm to another person with or without dangerous or deadly weapons;
3.17.b. Placing another person in reasonable apprehension of physical harm;
3.17.c. Creating fear of physical harm by harassment, stalking, psychological abuse, or threatening acts;
3.17.d. Committing either sexual assault or sexual abuse as those terms are defined in W. Va. Code §§61-8B-1 et. seq. and 61-8D-1 et seq.; or
3.17.e. Holding, confining, detaining, or abducting another person against that person's will.
3.18. “Firearm” has the same meaning as defined in W. Va. Code §61-7-2(7). Provided, That it does not mean an antique firearm (as defined in W.Va. Code §61-7-2(1)) except for the purposes of a domestic violence protective order prohibiting possession of any firearm or ammunition per W.Va. Code §48-27-502.
3.19. “Imminent danger to the physical well-being of the child”, has the same meaning as defined in W. Va. Code §49-1-201 with reasonable cause to believe that one or more of the following conditions threaten the health or life of any child in the home:
3.19.a. Nonaccidental trauma inflicted by a parent, guardian, sibling or a babysitter or other caretaker; or
3.19.b. A combination of physical and other signs indicating a pattern of abuse which may be medically diagnosed as battered child syndrome; or
3.19.c. Nutritional deprivation; or
3.19.d. Abandonment by the parent, guardian or custodian; or
3.19.e. Inadequate treatment of serious illness or disease; or
3.19.f. Substantial emotional injury inflicted by a parent, guardian or custodian; or
3.19.g. Sale or attempted sale of the child by the parent, guardian or custodian; or
3.19.h. The parent, guardian or custodian’s abuse of alcohol, or drugs or other controlled substance as defined in W. Va. Code §60A-1-101, has impaired his or her parenting skills to a degree as to pose an imminent risk to a child’s health or safety; or
3.19.i. Any other condition that threatens the health, life or safety of any child in the home.
3.20. “West Virginia law enforcement agency” has the same meaning as defined in W. Va. Code §30-29-1: Provided, That the Public Service Commission, any state institution of higher education, any hospital, or any resort area district is not a law-enforcement agency.
3.21. “Law enforcement officer” has the same meaning as defined in W. Va. Code §30-29-1.
3.22. “Law enforcement official” has the same meaning as defined in W.Va. Code §30-29-1.
3.23. “Multidisciplinary Investigative Team” or “MDIT” has the same meaning as defined in W. Va. Code §49-4-402).
3.24. “Municipality” has the same meaning as defined in W. Va. Code §29-12A-3.
3.25. “Neglected child” has the same meaning as defined in W. Va. Code §49-1-201.
3.26. “Protection Order” or “order of protection” or “protective order” under W.Va. Code §48-28-2, Uniform Interstate Enforcement of Domestic Violence Protection Orders Act, has the same meaning as defined in W.Va. Code §48-28-2(6)). Protective Orders include out-of-state orders and are entitled to full faith and credit (W. Va. Code §48-27-310).
3.27. “Personal Safety Order” has the same meaning as defined per 149 C.S.R. 07 and W. Va. Code §§53-8-5 and 53-8-7.
3.28. “Serious bodily injury” has the same meaning as defined in W. Va. Code §61-8B-1(10).
3.29. “Serious physical abuse” has the same meaning as defined in W. Va. Code §49-1-201.
W. Va. Code R. § 149-8-4 Dispatcher/Telecommunicator Responsibilities
4.1. Dispatchers/Telecommunicators under the supervision of police department and communications and emergency operations centers which dispatch the law enforcement officer shall dispatch child abuse and/or neglect calls in the same manner as any other call for police assistance, in accordance with the priority criteria prescribed by generally applicable department procedures. Whenever possible, the dispatcher/telecommunicator should assign a back-up unit.
4.2. The dispatcher/telecommunicator receiving allegations of a child abuse and/or neglect call should attempt to elicit from the caller, and should communicate to the responding law enforcement officer, as much of the following information, in the following order of importance, as time and emergencies of the reported incident allow:
4.2.a. The address of the incident, including the apartment number or the name of the business, as appropriate;
4.2.b. The nature of the incident;
4.2.c. Establish caller’s name whether they are the victim, and a telephone number where the caller can be called back;
4.2.d. Whether or not there are any injuries and whether an ambulance is needed;
4.2.e. Whether weapons are involved or present and if so, where they are located;
4.2.f. A description of the accused and whether or not the accused is present and, if not, the most likely location, direction of flight, and mode of travel of the accused;
4.2.g. Whether a protective order is in effect and if it includes consent to enter the residence to enforce the protective order;
4.2.h. Whether a personal safety order is in effect;
4.2.i. Whether other individuals, including children, are at the scene;
4.2.j. Whether any party is using or is under the influence of alcohol or drugs;
4.2.k. If the caller is the victim, in the residence, and is capable of giving consent, would they consent to entry;
4.2.l. Whether a criminal warrant is outstanding on the accused;
4.2.m. Whether the accused has been released on bail on a charge of a crime against a family or household member, including a family or household member who is a child, with any conditions on bail regarding contact with the victim or complainant; and
4.2.n. Whether a registered sex offender resides in the home;
4.2.o. Best practice is to not provide information that may identify a child over the radio, but to follow-up by telephone.
4.3. If the caller is the victim, or if the caller is a witness to an abuse and/or neglect incident in progress, the dispatcher/telecommunicator should keep the caller on the telephone and should relay ongoing information provided by the caller to the responding law enforcement officer. The dispatcher/telecommunicator should tell the caller that help is on the way, if that is the case, and will arrive as quickly as possible.
4.4. If the dispatcher/telecommunicator has ready access to police department records, all information relevant to the situation shall be relayed to the law enforcement officer. If the agency is capable, the dispatcher/telecommunicator shall access the Domestic Violence Database to see if there is an active protective order. If so, is the box checked giving the officer consent to enter the residence to enforce the order. If the agency is capable, the dispatcher/telecommunicator shall access the National Crime Information Center (NCIC), and other criminal information databases to determine whether the parties involved in the incident have been involved previously in domestic violence incidents. Further, if the agency is capable, the dispatcher/telecommunicator shall access the Child Abuse And Neglect Registry maintained by the West Virginia State Police per W.Va. Code §15-13-1. All information received shall be relayed to the requesting law enforcement officer.
4.5. If the dispatcher/telecommunicator has reason to believe that the accused is on bond for a crime against a family or household member, including family or household members who are children, and if the dispatcher/telecommunicator has ready access to magistrate court records that show whether there are conditions of bond the dispatcher/telecommunicator should consult the records and radio any relevant information to the responding law enforcement officer; including the existence of a protective order prohibiting the possession of firearms.
4.6. Dispatchers/Telecommunicators should notify law enforcement of any audible evidence that may be overheard during a call.
W. Va. Code R. § 149-8-5 Law Enforcement Responsibilities
5.1. Responding to emergency reports of child abuse and/or neglect or other crimes in which children are present on the scene.
5.1.a. Approaching the scene.
5.1.a.1. Scenes may be classified in one of two manners: (A) Alleged criminal act involving children is in progress- an emergency situation- or (B) A complaint of alleged criminal acts involving children that occurred previously and has been reported after the incident has ended- a non-emergency situation.
5.1.a.2. In approaching a reported emergency situation, law enforcement officers should exercise standard precautionary measures, including but not limited to:
5.1.a.2.A. Discontinuing use of lights and sirens before arriving in proximity to the scene.
5.1.a.2.B. Parking at a distance from the scene and making the final approach on foot, in a discreet manner.
5.1.a.2.C. Maintaining awareness of any potential dangers or hazards outside of the immediate scene while approaching- e.g. perpetrator has left the scene but may be in the vicinity.
5.1.a.2.D. Maintaining awareness of potential evidence outside of the immediate scene while approaching- e.g. bloodstains, discarded weapons, shell casings, possible witnesses, vehicles parked near the scene that may have been used by alleged victims or perpetrators to travel to the scene.
5.1.a.3. In approaching a reported non-emergency situation, law enforcement officers should remain aware of potential evidence that may be located outside of the residence - e.g. bloodstains, broken toys, broken windows, accumulated trash around the residence, neglected or maltreated animals, or any indication that the residence would be unsafe or unsanitary for children. If such conditions are observed, the law enforcement officer should document such conditions through the use of photography on a department issued device, if available.
5.1.b. Initial contact.
5.1.b.1. The responding law enforcement officer should identify themselves, explain the law enforcement presence, and request entry into the home or business. The law enforcement officer should ask to see the person who is the subject of the call. The law enforcement officer should not reveal the caller’s name.
5.1.b.2. The law enforcement officer may enter and conduct a search of the premises relevant to the incident if written or verbal consent has been given to do so. If a domestic relations protective order is in effect, written consent to enter may have been given by the victim and be on file. The law enforcement officer shall limit the search to a search for other suspects, victims, witnesses, or evidence connected with the alleged domestic incident.
5.1.b.3. If refused entry, the law enforcement officer should be persistent about seeing and speaking alone with the subject of the call. If access to the subject is refused, the law enforcement officer should request the dispatcher/telecommunicator to contact the caller, if the caller is the subject of the call, and communicate between the law enforcement officer and the caller. If sufficient probable cause exists, a law enforcement officer may elect to secure the scene pending the issuance of a search warrant for the premises. If the law enforcement officer leaves the scene, the law enforcement officer should drive by the premises and observe it frequently. If the law enforcement officer remains to observe the premises, the law enforcement officer should move to public property (the street) and observe the premises.
5.1.b.4. In some circumstances, forced entry is necessary and appropriate. Forced entry may be appropriate when the residence area shows signs of a fight or scuffle; or when a person from inside the residence calls for assistance or is yelling; or when a person from inside is visible and the law enforcement officer observes that the person is wounded, injured, or is otherwise in need of assistance.
5.1.c. Establishing control of the scene.
5.1.c.1. If the scene is established as an emergency situation- abuse and/or neglect of children in progress or just occurred- then the law enforcement officer shall undertake immediate action to secure the scene and protect all occupants of the residence.
5.1.c.1.A. Determine if anyone in the residence is armed or is in close proximity to dangerous and deadly weapons. Call for the assistance of other law enforcement officers as necessary to secure the scene.
5.1.c.1.B. Determine if anyone in the residence is in need of immediate medical attention and, if so, render such medical attention as is possible until emergency medical service personnel arrive at the scene.
5.1.c.1.C. To the extent possible, the law enforcement officer should separate the involved parties at the emergency scene and attempt to interview all parties separately. The preferred method for documenting at-scene interviews shall be the use of body camera footage, digital audio and/or digital video recording devices. Even if there are no immediate allegations of child abuse, law enforcement officers shall interview any children present to determine what, if anything, the children within the residence may have heard, seen, or otherwise observed.
5.1.c.1.D. Law enforcement officers present at an emergency scene shall make note of factors within the scene consistent with the possible abuse and/or neglect of children, including but not limited to, dangers within the residence such as exposed wiring or open heating sources, chemicals or dangerous substances within reach of small children, rodent infestation, unsanitary living conditions, broken fixtures within the residence or other indications of inter-personal family violence, including but not limited to bloodstains or visible physical injuries to children or adults within the residence such as bruises, cuts, redness, bite marks, or other injuries. As soon as it may be practical, the law enforcement officer should document any such observations through the use of digital photography.
5.1.c.1.E. The law enforcement officer at the scene shall make a report to child protective services (CPS) through the Centralized Intake hotline (1-800-352-6513) when there is reasonable cause to suspect that a child is neglected or abused, including sexual abuse or sexual assault, or observes the child being subjected to conditions that are likely to result in abuse or neglect. If CPS is responding per W. Va. Code §49-2-802(c)(5) and there is an emergency situation in which risk of harm may be posed to the CPS worker, or if an emergency removal of a child may be necessary due to imminent danger as defined in W. Va. Code §49-1-201, the officer shall maintain a presence at the scene, to assist with the investigation and/or removal. When a law enforcement officer is arresting a parent, if there is a protective caregiver identified by the parent, the officer will ensure an NCIC record check is completed, that the Domestic Violence Database is checked to see if there is an active protective order and the Child Abuse and Neglect Registry is checked for the identified protective caregiver to verify there are no child endangerment criminal histories. If no protective caregiver can be identified then the officer will assume protective custody as defined in W. Va. Code §49-4-301(a), and contact CPS.
5.1.c.2. If the scene is classified as a non-emergency situation - no violence is in progress or has just occurred - then the law enforcement officer shall proceed to conduct the preliminary investigation using normal investigative protocols.
5.1.c.2.A. When possible, the law enforcement officer should attempt to have a CPS worker accompany them to the scene of any reported incident of child abuse and/or neglect.
5.1.c.2.B. Upon arriving at the scene of a reported incident that is no longer in progress, the law enforcement officer shall use routine precautions to ensure that no one in the residence poses an immediate danger to anyone else present, including the law enforcement officer and/or the CPS worker.
5.1.c.2.C. To the extent possible, the law enforcement officer shall separate all involved parties or witnesses and shall conduct interviews with all involved parties or witnesses. The preferred method is to record all such interviews using body camera footage, digital audio and/or audio-video recording systems.
5.1.c.2.D. In any non-emergency situation, the preferred method shall be for the law enforcement officer to interview any adult victims or witnesses first. If anyone present at the scene makes allegations of potential child abuse and/or neglect, including sexual abuse, sexual assault, human trafficking and/or serious physical abuse, the law enforcement officer and/or CPS worker, if involved, shall attempt to schedule an appointment for the child or children to undergo a forensic interview at the nearest CAC or another neutral setting by a trained forensic interviewer.
5.1.c.2.E. If, during a preliminary investigation, a child discloses allegations of sexual abuse, sexual assault, human trafficking and/or serious physical abuse, the law enforcement officer and/or CPS worker shall attempt to schedule a forensic interview with the child at the closest CAC as soon as possible. If no CAC is available, then the next best location shall be a neutral location, preferably in a child-friendly setting. If no such resources are available, then the law enforcement officer and/or CPS worker present shall conduct and record an initial interview with the child or children using appropriate interviewing techniques at a neutral location.
5.1.c.3. The preferred and recommended method of conducting all non-emergency interviews with children who are the alleged victims of child abuse or neglect or child sexual abuse, shall be to schedule an interview with the child or children at the closest CAC by a neutral forensic interviewer at the earliest possible time, as appropriate to the county based protocols. When no CAC is available for use, the law enforcement officer and/or CPS worker shall undertake every effort to interview the child or children in the most effective manner possible consistent with the health, safety and well-being of the child.
5.2. Initial investigation.
5.2.a. If the law enforcement officer suspects the child is subject to conditions where child abuse and/or neglect has or is likely to occur, make a mandatory referral to CPS through the Centralized Intake hotline (1-800-352-6513). A child does not have to be directly physically injured, nor does a crime have to of occurred, to mandate a report to CPS.
5.2.b. All cases involving child death, unattended by a medical provider, must be reported to the appropriate medical examiner or coroner.
5.2.c. Child abuse and/or neglect is alleged in the complaint (call).
5.2.c.1. Identify the alleged perpetrator and determine if the perpetrator is a family member or custodian. Also, identify everyone in the residence at the time of the incident for the safety of the children.
5.2.c.1.A. If CPS is on scene or arrives during the on scene investigation:
5.2.c.1.A.1. The law enforcement officer and CPS worker should work together in a manner to protect the alleged victim, other children, and adults in the residence.
5.2.c.1.A.2. Law enforcement may be contacted when CPS is already on scene, after they have been on the scene, or when they are in route to the scene.
5.2.c.1.A.3. Consult with the CPS worker so the law enforcement officer can determine how to intervene.
5.2.c.1.B. Keep children with known adults; whenever possible – identify someone at the scene who can take care of them.
5.2.c.1.C. Check the well-being of all children who are present at the scene or who reside in the home that may have left the scene.
5.2.c.1.D. When applicable, take color photos of the crime scene including any evidence of children’s abuse and/or neglect, e.g. interior/exterior condition of the entire residence or facility where abuse occurred, child injuries, parents (if involved).
5.2.c.1.E. List all children who reside in the home and/or all children the alleged perpetrator may have had access to, in the body of the report.
5.2.c.1.F. Avoid making an arrest in the children’s presence whenever possible.
5.2.c.2. Interviewing alleged perpetrator.
5.2.c.2.A. Try not to interview the perpetrator in the children’s presence. To the extent possible, the law enforcement officer should separate the involved parties at the emergency scene and attempt to interview all parties separately.
5.2.c.2.B. Apply Miranda warning as appropriate to the situation.
5.2.d. Observation/response to child abuse and/or neglect when responding to other alleged crimes.
5.2.d.1. Check for signs of children’s presence when observing scenes of all crimes.
5.2.d.2. If children were on the scene at the time of the alleged crime, or personally witnessed the crime, make sure to list them on the incident report as witnesses or in the body of the report. If a child is a victim of any crime, including such crimes as child abuse and/or neglect, list the child as a victim in the report or write a separate report.
5.2.d.3. When taking color photos of the crime scene include any evidence of children’s exposure to violence or evidence of child abuse and/or neglect, e.g. crib/child’s bed in room where victim was injured, toys broken and thrown around room, interior/exterior condition of the entire residence or facility where abuse occurred, child injuries, parents (if involved).
5.2.d.4. Avoid making an arrest in the children’s presence whenever possible.
5.2.d.5. If the officer(s) has reasonable cause to suspect that a child is neglected or abused, including sexual abuse or sexual assault, or observes the child being subjected to conditions that are likely to result in abuse or neglect, the officer must make a mandatory referral to CPS through the Centralized Intake hotline (1-800-352-6513). A child does not have to be directly physically injured, nor does a crime have to have occurred, to mandate a report to CPS.
5.2.d.5.A. Child abuse and/or neglect when domestic violence is present. In addition to procedures outlined in the Protocol for Law Enforcement Response to Domestic Violence (149CSR3), the following describes some of the responsibilities of the responding law enforcement officer when children are exposed to a domestic violence incident, or reside in the home.
5.2.d.5.A.1. List all children who reside in the home who were not present during the domestic violence incident in the body of the report.
5.2.d.5.A.2. When taking color photos of the crime scene include any evidence of children’s exposure to violence, e.g. crib/child’s bed in room where victim was injured, toys broken and thrown around room.
5.2.d.5.A.3. When interviewing parents/custodians, keep in mind that child abuse can be perpetrated by either the suspect or victim of domestic violence or both parties. However, a victim of domestic violence should not be treated as a suspect of child abuse unless there is reasonable cause to believe that the victim has perpetrated some type of abuse upon a child. Treating the victim as a suspect will place the victim in a guarded and defensive state which may impede an investigation and cause further trauma to the victim and child.
5.2.d.5.A.4. When interviewing parents/custodians, ask about the children and their location during the incident.
5.2.d.5.B. Child abuse and/or neglect with drug endangerment by parent/custodian. In addition to procedures outlined in these rules and existing or established department procedures for responding to calls when substance abuse/illegal use of substances is present, the following describes some of the responsibilities of the responding law enforcement officer when children are exposed to substance abuse/illegal use, or reside in the home.
5.2.d.5.B.1. Observe for access to controlled substances by children and/or manufacture of controlled substances with children present.
5.2.d.5.B.2. When taking color photos of the crime scene include any evidence of children’s access to or ingestion of controlled substances, e.g. crib/child’s bed in room where controlled substances are found or manufactured, or drug paraphernalia within reach of children.
5.2.d.5.B.3. If the law enforcement officer has reasonable cause to suspect that a child is neglected or abused, including sexual abuse or sexual assault, or observes the child being subjected to conditions that are likely to result in abuse or neglect, the law enforcement officer must make a mandatory referral to CPS through the Centralized Intake hotline (1-800-352-6513). A child does not have to be directly physically injured, nor does a crime have to have occurred, to mandate a report to CPS per W.Va. Code §49-2-803.
5.2.e. Do not use children present on scene as non-English speaking or sign language interpreters. To do so will increase their trauma. It puts them in a situation of divided loyalty, and they may fear repercussions from the aggressor in the incident. Their translation may also be unreliable, because it is affected by their own emotional state. Some jurisdictions require that no family members be used to translate interviews. In cases where the accused or victim does not speak English, law enforcement officer should use a neutral interpreter. Officers shall not use family, friends, and especially children, to provide interpreter services.
5.2.f. Taking emergency custody without a court order.
5.2.f.1. A law enforcement officer may take emergency custody of a child believed to be abused and/or neglected without a court order if (1) the child is without supervision or shelter for an unreasonable period of time in light of the child’s age and the ability to care for himself or herself in circumstances presenting an immediate threat of serious harm to that child; or (2) the law enforcement officer determines that a child is in a condition requiring emergency medical treatment by a physician and the child's parents, parent, guardian or custodian refuses to permit such treatment, or is unavailable for consent (W.Va. Code §49-4-301).
5.2.f.1.A. If the law enforcement officer discovers an abandoned child, the law enforcement officer cannot remove the child as abandoned from a place until all reasonable efforts to make inquiries and arrangements with neighbors, relatives and friends have been exhausted. No child may be considered abandoned, and custody withheld from the child's parent(s), guardian or custodian if they present themselves in a fit and proper condition and request physical custody of such child. Prior to taking a child into protective custody as abandoned, the law enforcement officer shall post a typed or legibly handwritten notice at the place the child is found, informing the parent(s), guardian or custodian that the child was taken by a law-enforcement officer, the name, address and office telephone number of the law enforcement officer, the place and telephone number where information can continuously be obtained as to the child or children’s whereabouts, and if known, the CPS worker for DoHS having responsibility for the child.
5.2.f.1.B. A law enforcement officer may take emergency custody of a child without a court order for conditions requiring emergency medical treatment. A condition requiring emergency medical treatment means a condition which, if left untreated for a period of a few hours, may result in permanent physical damage. Such conditions include, but are not limited to, profuse or arterial bleeding, dislocation or fracture, unconsciousness and/or evidence of ingestion of significant amounts of a dangerous substance. When a law enforcement officer takes custody of a child due to the child requiring emergency medical treatment, the law enforcement officer must assure that the child is taken directly to an appropriate medical facility. The law enforcement officer must provide the child’s parent(s), guardian or custodian the name and location of the medical facility to which the child is being taken.
5.2.f.2. When transferring emergency custody to a physician or worker from the West Virginia DoHS, the law enforcement officer must provide a typed or legibly handwritten statement identifying the law enforcement officer's name, address and office telephone number and specifying all the facts upon which the decision to take the child into protective custody was based, the date, time and place of the taking. If custody is being transferred to CPS, the CPS worker may provide the law enforcement officer an emergency placement contract that would meet these requirements.
5.3. Responding to non-emergency reports of crimes against children or conducting an on-going investigation after establishing control of an emergency situation.
5.3.a. Reports may be received from any person by any means, either verbal, electronic or hand-written.
5.3.b. Case assignment.
5.3.b.1. Upon receipt of a report, case assignment for investigation should be made immediately, not exceeding 24 hours. Cases should be assigned by the law enforcement official of the agency or by the prosecuting attorney.
5.3.b.2. The following criteria are considered best practice when determining case assignment:
5.3.b.2.A. The law enforcement officer should have training specific to child abuse and/or neglect and experience in child abuse and/or neglect investigations.
5.3.b.2.B. The investigative law enforcement officer shall provide updates through a formal mechanism to the MDIT case reviews or monthly meetings and meet with members of the MDIT, upon request.
5.3.c. Victim Interview.
5.3.c.1. Pre-interview.
5.3.c.1.A. The law enforcement officer should observe, inquire, and report the evidence of any special needs of the allegedly abused child. This may include, but is not limited to: physical and/or developmental disability and communication issues such as language, speech, or deafness, if the child is noncommunicative or has autism. Information related to special needs of the child should be provided to the CAC or forensic interviewer.
5.3.c.1.B. The law enforcement officer should make the necessary referral for the forensic interview as soon as possible, not exceeding 72 hours, as appropriate to the needs of the case.
5.3.c.1.C. The law enforcement officer should review information concerning this allegation and the background of the alleged victim or perpetrator, as reasonably available.
5.3.c.2. During the interview.
5.3.c.2.A. The investigating law enforcement officer should be present at the time of the interview, although not present in the interview room unless the law enforcement officer is conducting the forensic interview.
5.3.c.2.B. The best practice model for a forensic interview shall be for the investigating law enforcement officer or interviewer to address the recording prior to the initiation of the actual forensic interview, for the purpose of recording the date, time, and location of the forensic interview, the name and contact information of the child being interviewed, the person conducting the forensic interview, and all persons present and observing the forensic interview.
5.3.c.2.C. All interviews should be conducted by a trained forensic interviewer in a neutral location, preferably in a child-friendly setting that provides a comfortable, private setting that is both physically and psychologically safe for clients per W.Va. Code §49-3-101. Interviews must be conducted at a CAC, if available, and appropriate to county-based protocols.
5.3.c.2.D. Interviews are recorded pursuant to the protocol of the local CAC and DoHS. It is advisable for law enforcement to ensure that an additional digital recording device is used for back-up during any forensic interview consistent with W.Va. Code §62-6B-6.
5.3.c.3. Post-interview.
5.3.c.3.A. The law enforcement officer should collaborate with appropriate MDIT members for investigative coordination.
5.3.c.3.B. The law enforcement officer should make a referral to an appropriate member of the MDIT to ensure the alleged victim is connected to appropriate services.
5.3.c.3.C. The law enforcement officer should advise parties of the availability of domestic violence protective order or personal safety orders through magistrate court as appropriate to the needs of the case.
5.3.d. Alleged perpetrator interview.
5.3.d.1. The law enforcement officer should conduct the interview of the alleged perpetrator as soon as possible when there is sufficient evidence to warrant the interview or, in no case to exceed 72 hours following child interview without documented reasonable cause. If the interview will not occur within the 72 hour window, the law enforcement officer must report to the prosecuting attorney’s office and seek consultation.
5.3.d.2. The interview of the alleged perpetrator should be video recorded, if available; if video recording is not available, the interview must be audio recorded at a minimum.
5.3.d.3. The law enforcement officer shall apply Miranda warnings as necessary and appropriate.
5.3.e. Evidence Collection.
5.3.e.1. The law enforcement officer should regularly consult with the prosecuting attorney, as warranted by circumstances of the case.
5.3.e.2. The law enforcement officer should check with MDIT members for evidence. This may include, but is not limited to: CAC records, CPS records, medical records, and mental health records.
5.3.e.3. The law enforcement officer should look for credible evidence, which means evidence of the victim's condition which may include, but is not limited to, physical injury, evidence of malnutrition, untreated injury or disease, lack of proper hygiene, bite marks, or evidence of sexual abuse.
5.3.e.3.A. Credible evidence of the condition of the accused may include, but is not limited to, physical injury, sexually transmitted diseases, or behaviors inconsistent with providing a minimal degree of care and supervision for a minor child.
5.3.e.3.B. Credible evidence of the condition of the scene may include, but is not limited to, lack of adequate food, clothing, or shelter, lack of heating, cooling, or ventilation, conditions which could reasonably pose a hazard to children such as uncontrolled access to hot surfaces or open flames, exposed wiring, insect or rodent infestation, manufacture or distribution of controlled substances, or a general deficiency of commonly accepted sanitary standards.
5.3.e.3.C. Other credible evidence may include, but is not limited to, medical records of the child, school attendance records, statements of uninvolved witnesses including but not limited to teachers or other mandated reporters, statements by the accused admitting one or more elements of the offense, or threats made by the accused in the presence of a law enforcement officer, audible evidence of a disturbance heard by the dispatcher/telecommunicator or other agent receiving the request for law enforcement assistance; or written statements by witnesses.
5.3.e.3.D. The recorded and documented statement of a child victim alone may serve as credible evidence for the basis of investigation and prosecution.
5.3.e.4 The law enforcement officer should look for credible corroborative evidence, which means evidence that is worthy of belief and corresponds with the allegations of one or more elements of the offense and may include, but is not limited to, the condition of the victim, the accused, and the scene.
5.3.e.5. Other evidence may include, but is not limited to:
5.3.e.5.A. Medical or mental health records of the alleged perpetrator or alleged victim, to be secured by appropriate subpoena and/or release, as may be necessary;
5.3.e.5.B. Criminal background check of the alleged perpetrator;
5.3.e.5.C. School records;
5.3.e.5.D. Information technology records, including but not limited to: phone records, computer hard drives, internet communications, and text messages;
5.3.e.5.E. 911 recordings;
5.3.e.5.F. Witness interviews;
5.3.e.5.G. Jail telephone recordings and communication logs;
5.3.e.5.H. Surveillance video; and
5.3.e.5.I. Threatening communications with the alleged victim and/or family members.
5.3.e.6. The law enforcement officer should obtain a search warrant or signed voluntary consent to search for the premises where the alleged incident is reported to have occurred and for other premises or vehicles, as deemed relevant to the investigation.
5.3.f. Arrest/Prosecution.
5.3.f.1. The arrest decision should be made on a case by case basis in consultation with the prosecuting attorney, considering the child’s safety and facts of the case.
5.3.f.2. The investigating law enforcement officer shall consult with the prosecuting attorney to deem the appropriate time for presentation to a grand jury and, in anticipation of the grand jury presentation, the law enforcement officer shall prepare an investigation report that may include but not be limited to:
5.3.f.2.A. Completion of the report format utilized by his or her agency;
5.3.f.2.B. Narrative of the circumstances of the crime alleged;
5.3.f.2.C. List of witnesses, including full names, addresses, and telephone numbers;
5.3.f.2.D. Recorded statements of the alleged perpetrator and other witnesses;
5.3.f.2.E. Recorded forensic interview of the alleged victim;
5.3.f.2.F. All medical and mental health records secured as a part of the investigation;
5.3.f.2.G. Any forensic or medical tests for which results remain pending;
5.3.f.2.H. Any documentary evidence secured by subpoenas or search warrants;
5.3.f.2.I. Inventory of physical evidence and its location.
5.3.f.3. The investigation report shall be delivered to the prosecuting attorney in accordance with the instructions provided by the prosecuting attorney.
5.3.f.4. Separate and apart from the investigation report, all other notes or documents prepared by the law enforcement officer as a part of the law enforcement officer’s work product in conducting the investigation shall be delivered to the prosecuting attorney apart from, but simultaneously with the investigation report.
W. Va. Code R. § 149-8-6 Child Protective Services Responsibilities
6.1. Child Protective Services is provided by the West Virginia DoHS. CPS is not a punitive intervention but rather helping in nature. Although CPS and law enforcement have different duties and responsibilities, through collaboration and partnership both entities can maintain their own organizational integrity and meet their professional obligations to protect children.
6.2. Child Protective Services must assess families when a child is abused and/or neglected, or when a child is subject to conditions where abuse and/or neglect is likely to occur. Child Protective Services must respond in a timely manner in order to ensure child safety based upon the alleged child maltreatment and family conditions.
6.3. The CPS assessment seeks to determine if a child in the residence requires protection from their parents, guardians or custodians. If a child in the residence requires protection, CPS then provides ongoing services to the family to change the behavior.
6.4. Child Protective Services may be required to seek judicial authorization to remove a child from their home in order to assure protection. This decision is not strictly dependent upon whether or not a crime has occurred and should not deter law enforcement officers from pursuing criminal charges when appropriate.
6.5. Child Protective Services must cooperate, to the extent possible, with law enforcement officers when conducting joint assessments/investigations. When working with officers, CPS workers must adhere to applicable state statutes, federal statutes, local MDIT procedures and CPS policies.
W. Va. Code R. § 149-8-7 Mandated Reporting of Suspected Child Abuse or Neglect
7.1. The following individuals are mandated reporters of child abuse and/or neglect, as outlined in W. Va. Code §49-2-803:
7.1.a. Medical, dental, and mental health professionals
7.1.b. Christian Science practitioners, religious healers, and members of the clergy
7.1.c. School teachers and other school personnel
7.1.d. Social service, child care, and foster care workers
7.1.e. Emergency medical service personnel
7.1.f. Law enforcement officials and peace officers
7.1.g. Humane officers
7.1.h. Circuit court judges, family court judges, and magistrates
7.1.i. Division of Juvenile Services employees
7.1.j. Youth camp administrators
7.1.k. Counselors, employees, coaches or volunteers of an entity that provides organized activities for children
7.1.l. Commercial film or photographic print processors
7.2. The standards for reporting child abuse and/or neglect as a mandatory reporter are as follows:
7.2.a. Reasonable cause to suspect that a child is abused and/or neglected (applies to 7.1.a. through 7.1.l.).
7.2.b. Observation of a child being subjected to conditions that are likely to result in abuse and/or neglect (applies to 7.1.a. through 7.1.l.).
7.2.c. The mandated reporter is not required to be certain that abuse/neglect has occurred or to investigate independently the suspicion/observation. The facts of the case may not rise to the level of a criminal charge, but may meet the standard for an abused and/or neglected child as defined in the section of code that governs civil child abuse and neglect proceedings.
7.2.d. The reporter may take photographs of visible trauma or cause x-rays to be taken, if medically indicated, at public expense, to be shared with the report.
7.3. Procedure for reporting suspected child abuse or neglect.
7.3.a. Report to the West Virginia DoHS immediately or within 24 hours;
7.3.a.1. Call the Centralized Intake hotline number (1-800-352-6513) or per other methods created by the Bureau for Social Services;
7.3.a.2. Follow-up with a written report if requested by DoHS.
7.3.b. Additional reporting requirements for suspicion of serious physical abuse or sexual abuse/assault shall immediately be reported to the West Virginia State Police and any law enforcement agency having jurisdiction to investigate the complaint.
7.3.c. All cases involving death, unattended by a medical provider, must be reported to the appropriate medical examiner or coroner.
7.3.d. Reports made in good faith are confidential and immune from civil or criminal liability.
7.3.e. All privileged communication in regard to suspected or known child abuse and/or neglect is abrogated (e.g., husband and wife, professional and patient/client, etc.), except that between attorney and client.
W. Va. Code R. § 149-8-8 Appendix
8.1. West Virginia Criminal Code Sections to reference:
8.1.a. Abuse.
8.1.a.1. W. Va. Code §61-2-28 Related to domestic violence offenses;
8.1.a.2. W. Va. Code §61-8D-1 Definitions relating to child abuse and neglect;
8.1.a.3. W. Va. Code §61-8D-2 Murder of a child by a parent, guardian or custodian or other person in a position of trust in relation to a child, by refusal or failure to supply necessities, or by delivery, administration or ingestion of a controlled substance;
8.1.a.4. W. Va. Code §61-8D-2a Death of a child by parent, guardian or custodian or other person or person in a position of trust in relation to a child, by child abuse;
8.1.a.5. W. Va. Code §61-8D-3 Child abuse resulting in injury or creating risk of injury;
8.1.a.6. W. Va. Code §61-8D-3a Dealing with female genital mutilation.
8.1.b. General.
8.1.b.1. W. Va. Code §61-8B-14 Limiting interviews of children under the age of eleven;
8.1.b.2. W. Va. Code §61-7-7 Persons prohibited from possessing firearms;
8.1.b.3. W. Va. Code §61-2-28 Related to domestic violence;
8.1.b.4. W. Va. Code §61-2-9a Related to stalking, harassment;
8.1.b.5. W. Va. Code §61-2-14 Related to abduction of a person, kidnapping or child concealment;
8.1.b.6. W. Va. Code §61-2-14d Related to concealment or removal of a child from a custodian or from person entitled to visitation;
8.1.b.7. W. Va. Code §61-14-1, et seq. Related to human trafficking.
8.1.c. Neglect.
8.1.c.1. W. Va. Code §61-8D-1 Definitions relating to child abuse and neglect;
8.1.c.2. W. Va. Code §61-8D-4 Child neglect resulting in injury or creating risk of injury;
8.1.c.3. W. Va. Code §61-8D-4a Child neglect resulting in death;
8.1.c.4. W. Va. Code §61-8D-7 Presentation of false information to medical personnel regarding a child’s injuries;
8.1.c.5. W. Va. Code §60A-10-12 Related to exposure of children to the manufacture of methamphetamine.
8.1.d. Possession, Distribution or Exhibition of Obscene Materials Involving Minors and Internet Crimes Against Children.
8.1.d.1. W. Va. Code §61-8A-1 Definitions related to the preparation, distribution or exhibition of obscene matter to minors;
8.1.d.2. W. Va. Code §61-8A-2 Distributions and display to minor of obscene matter;
8.1.d.3. W. Va. Code §61-8A-4 Use of obscene matter with intent to seduce a minor;
8.1.d.4. W. Va. Code §61-8A-5 Use of minor to produce obscene matter or assist in doing sexually explicit conduct;
8.1.d.5. W. Va. Code §61-3C-14b Soliciting, etc. a minor via computer, soliciting a minor and traveling to engage the minor in prohibited sexual activity;
8.1.d.5.A. W. Va. Code §61-8-32 Soliciting, etc. a minor by means other than via computer, soliciting a minor and traveling to engage the minor in prohibited sexual activity;
8.1.d.6. W. Va. Code §61-8C-1 Definitions relating to child pornography and filming of sexually explicit conduct of minors;
8.1.d.7. W. Va. Code §61-8C-2 Use of minors in filming sexually explicit conduct and child pornography;
8.1.d.8. W. Va. Code §61-8C-3 Possession or distribution or exhibition of child pornography or material depicting minors engaged in sexually explicit conduct;
8.1.d.9. W. Va. Code §61-8D-6 Sending, distributing, exhibiting, possessing, displaying or transporting material by a parent, guardian or custodian, depicting a child engaged in sexually explicit conduct;
8.1.d.10. W. Va. Code §61-8C-3a Prohibiting child erotica;
8.1.d.11. W. Va. Code §61-8C-3b Prohibiting juveniles from manufacturing, possessing and distributing nude or partially nude images of minors.
8.1.e. Sexual Abuse. 8.1e.1. W. Va. Code §61-8-28 Criminal invasion of privacy;
8.1.e.2. W. Va. Code §61-8B-1 Definitions related to sexual offenses;
8.1.e.3. W. Va. Code §61-8B-2 Definitions related to consent;
8.1.e.4. W. Va. Code §61-8B-7, 8 and 9 Relating to the offense of sexual abuse;
8.1.e.5. W. Va. Code §61-8D-5 Sexual abuse by parent, guardian or custodian.
8.1.f. Sexual Assault.
8.1.f.1. W. Va. Code §61-8-28 Criminal invasion of privacy;
8.1.f.2. W. Va. Code §61-8B-1 Definitions related to sexual offenses;
8.1.f.3. W. Va. Code §61-8B-2 Definitions related to consent;
8.1.f.4. W. Va. Code §61-8B-3, 4 and 5 Relating to the offense of sexual assault;
8.1.f.5. W. Va. Code §61-8-12 Incest;
8.1.f.6. W. Va. Code §61-8-8 Receiving support from prostitution or pimping.
8.2. West Virginia Civil Code Sections to reference:
8.2.a. General.
8.2.a.1. W. Va. Code §49-1-201 Definitions related, but not limited, to child abuse and neglect;
8.2.a.2. W. Va. Code §49-4-301 Law enforcement officers taking emergency custody;
8.2.a.3. W. Va. Code §49-2-812 Misdemeanor offense of failing to report or preventing the reporting of suspected child abuse and/or child neglect;
8.2.a.4. W. Va. Code §49-4-201, 202 Safe haven babies.
149CSR8
149CSR8
Series 11 Sexual Assault Forensic Examinations
W. Va. Code R. § 149-11-1 General
1.1. Scope. -- This rule establishes requirements for the treatment of sexual assault victims.
1.2. Authority. -- W. Va. Code §15-9B-4.
1.3. Filing Date. -- April 23, 2025.
1.4. Effective Date. -- April 23, 2025.
1.5. Sunset Provision. -- This rule shall terminate and have no further force or effect on August 1, 2030.
1.6. Applicability. -- This rule is applicable to a hospital that provides sexual assault forensic exams.
W. Va. Code R. § 149-11-2 Definitions
2.1. “Acute” means within 96 hours of a sexual offense as defined subsection 2.16.
2.2. “Advanced practice registered nurse” or “APRN” has the meaning ascribed in W. Va. Code §30-7-1 et seq.
2.3. “Alcohol-facilitated sexual offense” means the use of any alcoholic beverage in the commission of a sexual offense.
2.4. “Drug-facilitated sexual offense” means the use of a chemical submissive agent in the commission of a sexual offense that produces relaxant effects, blackouts, coma, impaired judgment, or loss of coordination.
2.5. “Hospital” means a facility licensed pursuant to the provisions of W. Va. Code §16B-3-1 et seq. that primarily provides inpatient diagnostic, treatment, or rehabilitative services to the injured, disabled, or sick persons under the supervision of physicians with a 24-hour emergency department.
2.6. “Medical forensic services” means health care delivered to patients within or under the care of a qualified healthcare provider who is trained to conduct medical forensic examinations. "Medical forensic services" includes, but is not limited to, taking a medical history, performing photo documentation, performing a physical and anogenital examination, assessing the patient for evidence collection, collecting evidence in accordance with a statewide sexual assault evidence collection program administered by the West Virginia State Police using the Sexual Assault Evidence Collection Kit, if appropriate, assessing the patient for drug-facilitated or alcohol-facilitated sexual offense, and appropriate discharge and follow-up healthcare planning.
2.7. “Nonreported kit” means a kit collected from a sexual assault victim who has consented to the collection of the kit but has not consented to participation in the criminal justice process.
2.8. “Photo documentation” means digital photographs or colposcope videos stored and backed-up securely in the original file format.
2.9. “Physician” means a person licensed to practice medicine in all its branches as defined in W. Va. Code §30-3-1 et seq.
2.10. “Physician assistant” has the meaning ascribed in W. Va. Code §30-3E-1 et seq.
2.11. “Qualified healthcare provider” means:
2.11.1. A registered professional nurse who has completed a sexual assault nurse examiner course and training requirements approved by the SAFE Commission.
2.11.2. A registered professional nurse who has completed a modified sexual assault examiner course approved by the SAFE Commission and utilizes a teleSANE in performing forensic exams.
2.11.3. A physician performing forensic exams within his or her scope of practice and with the availability of a teleSANE.
2.11.4. A physician assistant performing forensic exams within his or her scope of practice and with the availability of a teleSANE.
2.11.5. An advanced practice registered nurse performing forensic exams within his or her scope of practice and with the availability of a teleSANE.
2.12. “Registered Professional Nurse” has the meaning ascribed in W. Va. Code §30-7-1 et seq.
2.13. “SAFE Commission” means the Sexual Assault Forensic Examination Commission created by W. Va. Code §15-9B-1 et seq.
2.14. “Sexual Assault Evidence Collection Kit” or “SAECK” or “kit” means a set of materials, including, but not limited to, swabs and tools for collecting blood samples, clothing, or other materials used to gather forensic evidence from a sexual assault victim of an acute sexual offense and the evidence obtained with the materials.
2.15. “Sexual Assault Forensic Examiner” means an APRN or registered professional nurse who has completed a 40- hour sexual assault forensic examiner course and advanced practicum skills session(s) approved by the SAFE Commission.
2.16. “Sexual offense” means any offense or attempted offense in the jurisdiction of the state in which a Sexual Assault Evidence Collection Kit is collected, including, but not limited to, the following code sections:
2.16.1. W. Va. Code §61-8-12;
2.16.2. W. Va. Code §61-8A-2;
2.16.3. W. Va. Code §61-8A-4;
2.16.4. W. Va. Code §61-8A-5;
2.16.5. Any offenses listed in W. Va. Code §61-8B-1 et seq.;
2.16.6. Any offenses listed in W. Va. Code §61-8C-1 et seq.; and,
2.16.7. Any offenses listed in W. Va. Code §61-8D-1 et seq.
2.17. “Sexual assault nurse examiner” or “SANE” means an APRN or registered professional nurse who has completed a 40- hour sexual assault nurse examiner course and advanced practicum skills session(s) approved by the SAFE Commission.
2.18. “Sexual assault victim” or “victim” means a person who presents for medical forensic services in relation to injuries or trauma resulting from a sexual offense.
2.19. “teleSANE” means certified sexual assault nurse examiner with documented expertise who provides forensic exam guidance through telehealth technology and is an approved provider by the SAFE Commission.
W. Va. Code R. § 149-11-3 Treatment of sexual assault victims
3.1. By January 1, 2026, a hospital shall have available 24 hours a day, seven days a week:
3.1.1. A qualified healthcare provider performing medical forensic services.
3.1.2. In lieu of the requirements contained in subsection 3.1., a signed written agreement with a hospital that is in compliance with the requirements of subsection 3.1. is acceptable for compliance. A hospital is permitted to have a signed written agreement with another hospital to provide medical forensic services for an adult, a child, or both.
3.2. A hospital that provides medical forensic services shall provide the following services:
3.2.1. Appropriate medical forensic services without delay, in a private, age-appropriate, or developmentally appropriate space, required to ensure the health, safety, and welfare of a sexual assault victim who presents within 96 hours after the offense, or who has disclosed past sexual assault by a specific individual and was in the care of that individual within the last 96 hours.
3.2.2. Appropriate oral and written information concerning evidence-based guidelines for the collection of evidence, depending on the sexual development of the sexual assault victim, the type of sexual offense, and the timing of the sexual offense. The qualified healthcare provider shall educate and request consent to evidence collection of sexual assault victims who present to a hospital with a complaint of sexual offense within 96 hours after the sexual offense. Following the discussion regarding the evidence-based guidelines for evidence collection, evidence collection shall be completed after the sexual assault victim's consent. The information required under this subsection shall be provided in person by the qualified healthcare provider providing medical forensic services directly to the sexual assault victim.
3.2.3. Appropriate oral and written information concerning the possibility of infection or sexually transmitted infection in accordance with CDC guidelines.
3.2.4. Medically accurate written and oral information about emergency contraception in accordance with CDC guidelines.
3.2.5. Appropriate oral and written information concerning accepted medical procedures, laboratory tests, medication, and possible contraindications of that medication available for the prevention or treatment of infection or disease resulting from sexual offense.
3.2.6. Referral for appropriate counseling. Initial referral should be to a community-based rape crisis center.
3.2.7. Written information regarding services provided by a rape crisis center and children's advocacy center, if applicable.
3.2.8. Information on drug- or alcohol-facilitated sexual offense testing, including an explanation of the comprehensive scope of a drug test or blood alcohol test, and the limited time frame within which evidence can be collected.
3.3. If a sexual assault victim is unable to consent to medical forensic services, the services may be provided under the West Virginia Health Care Decisions Act, the Health Care Surrogate Act, or other applicable State and federal laws.
3.4. Procedures to ensure the welfare and privacy of the victim shall be followed and shall include, but not be limited to, the following:
3.4.1. A member of the health care team shall respond immediately with the goal of placing a victim in a private area within 30 minutes of arrival to ensure privacy. Upon arrival the health care team shall initiate the hospital’s plan for sexual assault victims. Health care personnel shall refer to victims by code to avoid embarrassment.
3.4.2. If, for any reason, the victim is incapable of receiving oral and written information required in paragraph 3.2.2., the information shall be given to the caregiver/guardian.
3.4.3. When a victim is in custody, or has been arrested for or convicted of a violent crime or forcible felony and continues to be in custody when the victim presents for the medical forensic exam, then if the qualified healthcare provider and the representative of the custodial agency, after consultation with the rape crisis center advocate, agree that it is a necessary safety precaution, the representative of the custodial agency may remain in the room. In these situations, hospital staff shall facilitate privacy for the victim using curtains and positioning.
3.4.4. The health care facility shall call a rape crisis center advocate and shall offer to call a friend or family member to accompany the victim. Prior to introduction to the advocate, the victim must express consent to advocacy to a qualified healthcare provider. With the consent of the sexual assault victim, a rape crisis center advocate shall remain in the exam room during the medical forensic examination.
3.4.5. After a medical forensic or physical examination, access to a shower at no cost, unless showering facilities are unavailable.
3.5. A hospital that provides emergency medical services to sexual assault victims shall comply with the West Virginia Crime Victims Compensation Act, West Virginia Health Care Decisions Act, and any local ordinances, municipal codes, rules, or regulations that may apply to the treatment of sexual assault victims.
3.6. Nothing in this rule creates a physician-patient relationship that extends beyond discharge from the hospital.
3.7. The hospital shall take all reasonable steps to document the patient's informed decision to consent to or decline examination and treatment.
3.8. Nothing in this rule prohibits a hospital from treating a sexual assault victim who presents more than 96 hours following the offense.
3.9 If a request is made, the commission may approve additional locations where medical forensic services may be performed.
W. Va. Code R. § 149-11-4 Photo documentation
4.1. Photo documentation, with permission of the sexual assault victim, of the victim's injuries, anatomy involved in the offense, or other visible evidence on the sexual assault victim's body may supplement the medical forensic history and written documentation of physical findings and evidence. Photo documentation does not replace written documentation of the injury. Photo documentation taken during a medical forensic examination shall be maintained in a confidential manner.
4.2. Photo documentation shall be stored and backed up securely in its original file format in accordance with written hospital protocol.
4.3. Photo documentation of the sexual assault victim's injuries, anatomy involved in the offense, or other visible evidence on the sexual assault victim's body may be used in connection with peer review; expert second opinion; or in a criminal proceeding against a person accused of sexual offense, a juvenile delinquency proceeding pursuant to W. Va. Code §49-4-701 et seq., or an abuse and neglect investigation. Any dissemination under this subsection shall be in accordance with state and federal law.
W. Va. Code R. § 149-11-5 Submitting sexual assault evidence for testing
5.1. The Sexual Assault Evidence Collection Kit shall be used in the manner prescribed by the information contained in that kit.
5.2. With the victim's consent, as prescribed by subsection 5.3., the kit shall be completed in acute cases if the victim presents themselves for medical forensic services within 96 hours after the sexual offense or has disclosed past sexual offense by a specific individual and was in the care of that individual within the last 96 hours.
5.3. Written Consent to the Release of Sexual Assault Evidence for Testing.
5.3.1. Prior to the medical forensic exam, the qualified healthcare provider providing the medical forensic services shall provide the patient the opportunity to sign a written consent to allow the transmission of sexual assault evidence for testing or to be stored as a nonreported kit. The written consent shall be on a form included in the Sexual Assault Evidence Collection Kit.
5.3.1.a. If the victim is an adult who has a guardian, a health care surrogate, or an agent acting under a health care power of attorney, the consent of the guardian, surrogate, or agent is not required to release evidence and information concerning the sexual assault or sexual abuse. If the adult is unable to provide consent for the release of evidence and information and a guardian, surrogate, or agent under a health care power of attorney is unavailable or unwilling to release the information, then an investigating law enforcement officer may authorize the release.
5.3.1.b. After the qualified healthcare provider makes a mandatory report to law enforcement, all Sexual Assault Evidence Collection Kits collected on minors under the age of 18 shall be transmitted to the West Virginia State Police Lab for testing with no consent required.
5.3.2. The hospital shall provide the sexual assault victim with the kit tracking number and inform the victim that the kit may be tracked using the tracking kit number at www.go.wv.gov/kit.
5.3.3. The hospital shall keep a copy of the written consent form in the patient’s forensic medical record.
5.4. If an adult sexual assault victim does not consent to law enforcement involvement, the victim shall be given the opportunity to sign a written request that the kit shall be designated a nonreported kit and transmitted to the Marshall University Forensic Science Center. Sexual assault victims shall be informed in writing at the time their nonreported kit is collected that the kit shall be stored and maintained for a period of 20 years from the date the kit was collected.
5.5. If the sexual assault victim has consented to the transmission of sexual assault evidence for testing, upon collection a Sexual Assault Evidence Collection Kit shall be transmitted for testing by the hospital to the West Virginia State Police Forensic Laboratory within 30 days of collection or as soon thereafter as practicable. All packaging kits for transmittal and transmittal protocols shall be designed to meet applicable standards for maintaining the efficacy of the sample and chain of custody.
5.6. If the sexual assault victim does not consent to law enforcement involvement, upon collection the kit shall be designated a nonreported kit and submitted by the hospital to the Marshall University Forensic Science Center for storage.
5.7. The commission shall, in cooperation with the West Virginia State Police, develop protocols for storage of previously tested materials to be made available for secondary testing upon a court order to do so.
5.8. Biological evidence obtained through tests of Sexual Assault Evidence Collection Kits shall not be destroyed per W. Va. Code §15-9B-4(g). State and local law-enforcement agencies shall retain, preserve, and/or transfer biological evidence under conditions that are suitable for DNA testing per national best practices as identified by the SAFE Commission.
W. Va. Code R. § 149-11-6 Laboratory Responsibilities - Receipt of sexual assault evidence by laboratory
6.1. Upon receiving a Sexual Assault Evidence Collection Kit, the West Virginia State Police Forensic Laboratory or a laboratory approved and designated by the Superintendent of the West Virginia State Police shall prepare a record that includes the date the sexual assault evidence was received from the hospital, the date the evidence was reviewed, and the date the evidence was reviewed for collection quality.
6.2. After processing and testing of a Sexual Assault Evidence Collection Kit, the West Virginia State Police Laboratory shall transmit the Sexual Assault Evidence Collection Kit to the appropriate investigating state or local law-enforcement agency through any reasonable means sufficient to establish the proper chain of custody. The lack of timely submission or inadvertent loss or destruction of a Sexual Assault Evidence Collection Kit, standing alone, shall not constitute a bar to the prosecution of a sexual offense.
6.3. No Sexual Assault Evidence Collection Kit need be tested where the sexual assault victim has not consented to the testing, requests that the kit not be tested, where the sexual assault victim recants as to the allegation of a sexual offense, or the allegation that a sexual offense occurred is determined to be unfounded.
6.4. If the sexual assault victim does not consent to law enforcement involvement, the kit shall be designated a nonreported kit and transmitted to the Marshall University Forensic Science Center. Sexual assault victims shall be informed in writing at the time their nonreported kit is collected that the kit shall be stored and maintained for a period of 20 years from the date the kit was collected.
6.5. A sexual assault victim may request that the status of their kit be changed from reported to nonreported if the West Virginia State Police Crime Laboratory has not begun testing the kit. Upon execution of written request from the victim, the West Virginia State Police Crime Laboratory shall transfer the kit to the Marshall University Forensic Science Center to be stored as a nonreported kit.
6.6. A sexual assault victim may request that the status of their kit be changed from nonreported to a reported kit by authorizing the change in writing.
W. Va. Code R. § 149-11-7 Maintenance of nonreported Sexual Assault Evidence Collection Kits
7.1. Sexual Assault Evidence Collection Kits transmitted to the Marshall University Forensic Science Center pursuant to subsection 6.4. shall be maintained at no cost to the victim for a period of 20 years from the date the kit was collected.
7.2. Upon receipt of a kit, the Marshall University Forensic Science Center shall confirm that the kit is a nonreported kit. If it is not, Marshall University Forensic Science Center shall arrange for the kit to be sent for testing at the WV State Police Laboratory. Similarly, if the WV State Police Laboratory receives a nonreported kit, it shall arrange for the kit to be sent to Marshall University Forensic Science Center to be stored.
7.3. After a two-year period from the date the kit was collected, if adequate storage space is not available, non-report kits shall be assessed for evidence and re-packaged from original kits into smaller containers for the remainder of the initial 20-year storage periods.
7.4. The Marshall University Forensic Science Center shall develop a detailed protocol approved by the SAFE Commission, to triage the kit, preserve any potential evidentiary materials, retain blood/urine toxicology specimens, create an electronic case file, and take an electronic photo of any packaging and unused kit materials that are disposed.
7.5. The Marshall University Forensic Science Center shall maintain a strict protocol approved by the SAFE Commission for the disposition of kits. This shall include the shredding/destruction of personal confidential information as well as the utilization of a regulated biohazardous medical waste disposal service for the disposition of any biological materials. All electronic case files on a disposed kit shall be permanently deleted.
7.6. The Marshall University Forensic Science Center shall send a notice to the sexual assault victim’s last known address no fewer than 60 days prior to the date of the intended destruction or disposal of the evidence of the victim’s rights under W. Va. Code §61-11A-9 (Sexual Assault Victims’ Bill of Rights). The notice shall include information on the process that allows the victim to request, in writing, a ten-year extension on their kit’s retention to the Marshall University Forensic Science Center, as provided in W. Va. Code §61-11A-9 (Sexual Assault Victims’ Bill of Rights).
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